Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
Subchapter X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES
40 TAC §19.2322
The Texas Department of Human Services (DHS) proposes to
amend §19.2322, concerning allocation, reallocation, and decertification
requirements, in its Nursing Facility Requirements for Licensure and Medicaid
Certification chapter. The amendment reduces the documentation regarding quality
of care issues that must be provided to DHS when applying for a special commissioner's
waiver of restrictions on contracting for Medicaid beds in a nursing facility.
The amendment reduces the requirements necessary for a waiver for facilities
to meet the needs of underserved minorities. The amendment also makes it easier
for a facility to obtain a Medicaid bed for a Medicaid resident when no Medicaid
bed is available.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be the elimination of counter-productive restrictions
on nursing facility bed allocations. There will be no effect on small or micro
businesses as a result of enforcing or administering the section, because
the changes simply remove several unnecessary restrictions on Medicaid bed
allocations in nursing facilities. There is no anticipated economic cost to
persons who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Connie
Pate at 438-3529 in DHS's Long Term Care-Policy Section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-079,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department
has determined that Chapter 2007 of the Government Code does not apply to
these rules. Accordingly, the department is not required to complete a takings
impact assessment regarding these rules.
The amendment is proposed under the Human Resources Code, Title 2, Chapters
22 and 32, which authorizes the department to administer public and medical
assistance programs and under Texas Government Code §531.021, which provides
the Health and Human Services Commission with the authority to administer
federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§19.2322.Allocation, Reallocation, and Decertification Requirements.
(a)-(d)
(No change.)
(e)
Exemptions. If the NFO meets all criteria, DHS may grant
the following exemptions from the policy stated in subsection (c) of this
section.
(1)-(5)
(No change.)
(6)
Special commissioner's waiver.
(A)
The commissioner of DHS has authority to waive the restriction
on contracting in subsection (c) of this section and direct DHS to enter into
Medicaid contracts with NFOs that satisfy the requirements specified in this
subparagraph. In a manner acceptable to DHS, each of these NFOs must:
(i)
(No change.)
[
document that there are problems
with the quality of care available in the NFO's community, and show that new
Medicaid beds will remedy these problems;]
(ii)
[
(iii)
[
(iv)
[
(B)
(No change.)
(7)
Criminal justice and underserved minorities. The commissioner
may grant a waiver of these restrictions for a contract if the commissioner
determines that beds are necessary for the following circumstances:
(A)
(No change.)
(B)
to meet the documented demand in underserved minority communities
where beds are not available from existing resources. For purposes of this
waiver, the term minority [
[
be located in a county with
a total population of at least 1,000,000, according to the most recent U.S.
census;]
(i)
[
(ii)
[
[
be the only waived facility,
as defined in this paragraph, in that county.]
(C)-(D)
(No change.)
(8)
(No change.)
(9)
Medicaid eligible residents for whom no Medicaid bed is
available. Facilities may obtain certified beds to serve residents by meeting
the following criteria:
(A)
(No change.)
(B)
The NFO must:
(i)
(No change.)
(ii)
meet requirements for Medicaid participation;
and
(iii)
obtain a Medicaid contract
.
[
[
have demonstrated to DHS
a satisfactory history of quality of care as specified in subsection (d) of
this section.]
(C)-(D)
(No change.)
(f)-(j)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 11, 2001.
TRD-200102090
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
The Texas Department of Human Services (DHS) proposes amendments to §§97.1-97.3
(Subchapter A, General Provisions), §97.11, §§97.13-97.16 (Subchapter
B, Application and Issuance of a License); the repeal of §§97.21-97.28
(Subchapter C, Service Standards), §§97.51-97.54 (Subchapter D,
Enforcement), §§97.61-97.62 (Subchapter E, Home Health Aides and
Medication Aides), and §§97.71-97.72 (Subchapter F, Advisory Committees);
and proposes new §97.201 (new Subchapter C, Minimum Standards for All
Home and Community Support Services Agencies (HCSSAs), General Provisions), §§97.211-97.222
(new Subchapter C, Minimum Standards for All HCSSAs, Conditions of a License), §§97.241-97.257
(new Subchapter C, Minimum Standards for All HCSSAs, Agency Administration), §§97.281-97.303
(new Subchapter C, Minimum Standards for All HCSSAs, Provision and Coordination
of Treatment and Services), and §§97.321-97.322 (new Subchapter
C, Minimum Standards for All HCSSAs, Branch Offices and Alternate Delivery
Sites), §§97.401-97.407 (new Subchapter D, Additional Standards
Specific to License Category and Specific to Special Services), §§97.501-97.502
(new Subchapter E, Surveys), §§97.601-97.604 (new Subchapter F,
Enforcement), and §97.701 (new Subchapter G, Home Health Aides), in its
Licensing Standards for Home and Community Support Services Agencies chapter.
The phrase "Licensing Standards for" is being added to the chapter title to
identify the rules as licensing rules.
DHS has been reviewing Chapter 97 since the HCSSA program was transferred
to this agency in September 1999 in order to reorganize the rule base, clarify
ambiguous wording, eliminate duplication, strengthen the licensure standards
where needed and to reformat the end product to make it more consumer friendly.
This rule package is the second part of a three-part review of Chapter 97.
The second part of the review concentrated on Subchapter C, Service Standards.
To accommodate the reorganization of Subchapter C and to allow for the
future expansion of Subchapter B, all of existing Subchapters C - F are being
repealed and proposed as new rules under Chapter 97, Subchapters C - G, with
the exception of §97.62, §97.71, and 97.72. Section 97.62, concerning
home health medication aides, is being repealed and has been proposed as 40
TAC §95.128 in the March 30, 2001, issue of the
Texas Register
. Section 97.71, concerning the HCSSA Advisory Council,
and §97.72, concerning the DHS/Board of Nurse Examiners Memorandum of
Understanding Advisory Committee, are being repealed and have been proposed
as new 40 TAC §79.403(f) and (g) in the April 13, 2001, issue of the
New Subchapter C contains the minimum standards that are applicable to
all HCSSAs.
New Subchapter D contains additional standards that are specific to license
category and specific to special services that an agency may provide. The
license categories covered under Subchapter D include licensed home health
services, licensed and certified home health services, hospice services, personal
assistance services, home dialysis services, psychoactive services, and home
intravenous therapy.
New Subchapters E and G contain the procedures for survey and complaint
investigation and enforcement, and requirements for home health aides. Existing §97.54,
concerning criminal history checks for unlicensed personnel was inappropriately
located in the rule base under enforcement and is being repealed and proposed
as new §97.247 under agency responsibilities in new Subchapter C. These
subchapters and the criminal history check procedures have not yet been subject
to a review to reorganize the rule base, clarify ambiguous wording, eliminate
duplication and to reformat the end product to make it more consumer friendly;
however, certain revisions were made to address concerns in the rules in need
of immediate attention. These revisions are described in the summary of rule
changes further on in this preamble.
New Subchapters E and G, as well as rule language covering the HCSSA Advisory
Council, the DHS/Board of Nurse Examiners MOU Advisory Committee, and criminal
history check procedures will undergo a complete review by DHS during the
third and final part of the a three part schedule for review of Chapter 97
rules.
A summary of the major rule changes included in this proposal is as follows.
New definitions are added and existing definitions are amended for clarification,
to remove regulatory language, and to comply with statutory changes.
Under conditions of a license, language is added to require an agency to
post notice of any changes in the agency license so the public is made aware
of any changes in an agency's license. Language that required DHS's approval
prior to an agency transfer is being deleted, because it was determined to
exceed statutory authority. An agency must still provide notification to DHS
30 calendar days before the intended relocation. Notification requirements
for certain agency changes are being amended to provide notification to DHS
before the changes rather than after the changes occur. Language is also proposed
to require criminal history checks for a new administrator and a new chief
financial officer. Additionally, language is proposed to require an agency
to provide written notice 30 days prior to the expansion of its service area,
instead of 30 days after the effective date of the expansion. This includes
parent agencies, branch offices, and administrative support sites. This will
allow DHS time to review compliance history. An exemption is proposed for
emergencies that will be determined by DHS.
New requirements are proposed for policies governing client conduct and
responsibility and client rights applicable to all agencies, peer review to
ensure that all professional disciplines comply with their respective professional
practice act, and drug testing of an agency's employees if testing is performed
by an agency. A new policy requirement is added to ensure that clients are
educated in how to access care from another health care provider after regular
business hours. Another new policy requirement is proposed that requires an
agency to ensure that all employees are fully informed and understand all
of the agency's policies.
Statutory language specific to advance directives policy requirements is
added. Current rules just reference the statutory language. Minimum standards
for infection control are established. Existing language just requires a policy
for infection control.
Minimum standards are established for a Quality Assurance (QA) Program,
QA committee membership, and frequency of QA committee meetings. Existing
rules were determined to be too vague.
New language is proposed and existing language is amended to require that
the steps taken to coordinate services be documented in the client record,
to clarify existing client record requirements, and to establish a time limit
of 14 days for incorporating clinical and progress notes into the clinical
record. Current rules do not specify a time limit.
New language is added to strengthen the use of volunteers.
Two new agency disclosure requirements are proposed for reporting of abuse,
neglect, or exploitation of a client, and for an agreement to and acknowledgement
of services by home health medication aides.
New language is proposed to require that lists of clients be maintained
for each category of service licensed and specific information be included
on the list. This will enable DHS surveyors to survey an agency based on category
of service provided.
Language is proposed to allow physician orders to be received via facsimile
and to require an agency to adopt a policy for protocols to follow when accepting
physician orders via facsimile.
Management and ownership responsibilities are added in accordance with
statutory requirements. The rules will make the licensee more accountable
for the operations of the agency. New language requires that an agency have
a written organization structure in a chart or narrative format. The language
clarifies DHS's expectations for the written organization structure. New language
also requires the licensee to appoint the administrator as well as an alternate
to act in the administrator's absence. Existing rules assign responsibility
for the appointment of an alternate to the administrator.
The following additional job responsibilities are proposed for the administrator:
to ensure adequate staff education and evaluations, and to supervise and evaluate
client satisfaction survey reports. Health and Safety Code, §142.0011,
added in 1999, requires the rules to address client satisfaction. Additional
qualifications for the administrator, including the alternate or other designee,
are added. An administrator who qualifies under the training and experience
qualification must also have a high school diploma or a GED. This is also
added to the qualifications for the administrator of an agency licensed to
deliver personal assistance services only. Continuing education (CE) requirements
are added as a condition of employment for the administrator. The administrator
must have documented completion of a minimum of six clock hours per year at
a health service administration seminar.
New language is added to allow the supervising nurse to be available in
person or via telecommunication, so that the supervising nurse could be located
at all times. An amendment to the qualification that requires the supervising
nurse to "be a registered nurse (RN)" clarifies that the registered nurse
must to be "licensed in the state of Texas or in accordance with the Board
of Nurse Examiners rules for Nurse Licensure Compact (NLC)."
An amendment to the qualification that establishes the experience requirements
for the supervising nurse requires at least two years of current experience
as a registered nurse in a health care setting that provides care for children,
adults, or geriatric clients. For experience to be considered current, it
must have been obtained within three years prior to assuming the role of supervising
nurse. One year of experience working as a consultant or in some other capacity
that entailed administering home health care standards may be substituted
for one year of the required nursing experience. DHS is concerned that many
agencies were filling these positions with individuals without any real experience
in the area of a home or health care setting that provides for children, adults,
or geriatric clients. There is real concern that individuals may be reentering
the nursing field after a period of time and are not current on the latest
information or best practices. This area is changing so rapidly that it is
important that professionals, who are acting in the role of a supervising
nurse and are directing other staff, be well-informed and knowledgeable about
the most recent medical and social advances. DHS believes that increasing
the experience requirements for the supervising nurse will help ensure higher
quality of care and service. DHS also believes that many of the current quality
of care and service concerns that are occurring at agencies will decrease
by requiring a more experienced supervising nurse.
Under standards specific to licensed home health agencies, the following
changes are proposed. Language relating to the qualifications for the social
worker when performing medical social services is added. The qualifications
are inappropriately located in the definitions section in current rules. A
requirement is added that unlicensed personnel utilized by an agency to provide
home health services be required to demonstrate competency in the task assigned
when competency cannot be determined through education, license or certification,
or experience.
Under standards specific to agencies licensed to provide hospice services,
the following changes are proposed. The term "drug profile" is changed to
"medication list" and the definition of "medication list" is modified to reflect
the change in the definition section. An agency must keep a medication list,
and a pharmacy keeps a drug profile. Language is added to require the hospice
physician or registered nurse to contact the client within 24 hours prior
to the start of care to determine the immediate care and support needs of
the client. Language that prohibited a hospice from discontinuing care provided
to or discharging a client because of the client's inability to pay for that
care is being removed because the rule was determined to exceed DHS's authority
to impose as a licensing standard. In addition, the administrative penalty
for violation of that rule is being removed as well. Some of the language
relating to volunteers and client rights is moved to Subchapter C to apply
to all licensed categories of agencies.
Under standards specific to agencies licensed to provide personal assistance
services (PAS), the following changes are proposed. Requirements are added
for including the "planned date of service initiation" in the individualized
service plan. Gastrostomy tube (g- tube) feedings or medication administration
are no longer limited to short-term respite care. The proposal also clarifies
language relating to the qualified trainer of a training and competency program
for the performance of g-tube feedings.
Under standards specific to agencies licensed to provide home dialysis
services, the following changes are proposed. Client rights specific to home
dialysis are moved to Subchapter C and made applicable to all agencies. Requirements
are added for having emergency drugs available as specified by the medical
director. Standards for performing home dialysis are updated to reflect current
standards.
Under DHS's survey procedures, language is added to state that immediate
enforcement action will be taken for failure to grant access to all books,
records, or other documents maintained by or on behalf of the agency to the
extent necessary to ensure compliance with the statute, rules, an order of
the commissioner, a court order granting injunctive relief, or other enforcement
action. Additionally, the proposal clarifies that, if Medicare certification
for a licensed and certified agency is denied by the Health Care Financing
Administration (HCFA) or the agency withdraws from the Medicare program,
the agency may only operate under the category remaining on the current license.
Under DHS's procedures for license denial, suspension, or revocation, if
DHS takes enforcement action against an agency, its owner(s), or its affiliate(s),
the agency may not apply for an agency license "or make any requests to change
categories of license for one year" following the effective date of the enforcement
action. The language "or make any requests to change categories of a license
for one year" is new language. DHS has had agencies that are licensed with
the categories of "licensed and certified" and "personal assistant services,"
when their licensed and certified (Medicare) category is terminated for poor
quality of care and they want to add the category of licensed home health
services. A year's wait would allow the home health agency to regroup and
educate the staff to provide skilled services.
The schedules of administrative penalties are amended to reflect the reorganization
of the new rules. In instances where a rule previously applied only to one
category of license but now applies to all categories of licenses and where
there was a penalty already established for violation of that rule, the penalty
will be applied to all categories of licenses for failure to comply. The schedule
of penalties are more streamlined to reflect the elimination of duplication
and the reorganization of the rule base.
Additional minor changes are made throughout the rules for the purpose
of updating and clarifying language.
Eric M. Bost, commissioner, has determined that for the first five- year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the section are in effect the public benefit anticipated as a result of adoption
of the proposed rule will be more consumer-friendly rules that have been streamlined
by clarifying ambiguous wording, eliminating duplication, strengthening the
licensure process, and reformatting. As a result of the new requirements for
six clock hours of continuing education, there may be an increase in economic
cost to persons who are administrators of home and community support services
agencies and are required to comply with the proposed sections. It is difficult
to determine if there will be an increase in cost, because some continuing
education is provided at no cost. Also, if an administrator presently receives
at least six clock hours of the required continuing education per year, there
will be no additional cost to the individual. Some HCSSAs may opt to pay for
the continuing education if there is a cost. The estimated cost to individuals,
small businesses, microbusinesses, or large businesses will depend on who
pays and is estimated to be under $500 annually.
Questions about the content of this proposal may be directed to Linda Kotek
at (512) 438-3158 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-049, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. GENERAL PROVISIONS
40 TAC §§97.1 - 97.3
The amendments are proposed under the Health and Safety Code,
Chapter 142, which provides the department with the authority to adopt rules
for the licensing and regulation of home and community support services agencies.
The amendments implement the Health and Safety Code, Chapter 142.001-142.030.
§97.1.Purpose and Scope .
(a)
Purpose.
(1)
The purpose of
this chapter
[
(2)
Except as provided by the Health
and Safety Code, §142.003 (relating to Exemptions from Licensing Requirement),
a person, including a health care facility licensed under the Health and Safety
Code, Chapter 142, may not engage in the business of providing home health,
hospice, or personal assistance services, or represent to the public that
the person is a provider of home health, hospice, or personal assistance services
for pay without a HCSSA license authorizing the person to perform those services
issued by DHS for each place of business from which home health, hospice,
or personal assistance services are directed. A certified HCSSA must have
a license to provide certified home health services.
(b)
Scope. This chapter establishes
the minimum standards for acceptable quality of care, and a violation of a
minimum standard is a violation of law. These minimum standards are adopted
to protect clients of HCSSAs by ensuring that the clients receive quality
care, enhancing their quality of life.
[
These sections provide minimum
standards for acceptable quality of care, which include the following components:]
[
client independence and self-determination;]
[
humane treatment;]
[
continuity of care;]
[
coordination of services;]
[
professionalism of service providers;]
[
quality of life; and]
[
client satisfaction with services.]
(c)
Limitations.
Requirements established by private
or public funding sources [
§97.2.Definitions.
The following words and terms, when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(4)
(No change.)
(5)
Advanced practice nurse--A registered nurse
who is
approved by the Board of Nurse Examiners
(BNE)
[
(6)-(7)
(No change.)
(8)
Alternate delivery site--A facility or site, including
a residential unit or an inpatient unit:
(A)
(No change.)
(B)
that is not the hospice's principal place of business
. For the purposes of this definition the hospice's principal place of business
is the parent office for the hospice
;
(C)-(D)
(No change.)
(9)
(No change.)
(10)
Assistance with medication [
(11)-(21)
(No change.)
(22)
Complaint--An allegation against
an agency regulated by or against an employee of an agency regulated by the
Texas Department of Human Services (DHS). The complaint may be general or
specific and can involve staff, clients, volunteers, care issues, and administration.
(23)
[
(A)
A controlling person includes:
(i)
a management company, landlord, or other business entity
that operates or contracts with others for the operation of an agency;
(ii)
any person who is a controlling person of a management
company or other business entity that operates an agency or that contracts
with another person for the operation of an agency;
(iii)
any other individual who, because of a personal, familial,
or other relationship with the owner, manager, landlord, tenant, or provider
of an agency, is in a position of actual control or authority with respect
to the agency, without regard to whether the individual is formally named
as an owner, manager, director, officer, provider, consultant, contractor,
or employee of the agency.
(B)
A controlling person, as described by subparagraph (A)(iii)
of this paragraph, does not include an employee, lender, secured creditor,
or landlord, or other person who does not exercise formal or actual influence
or control over the operation of an agency.
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(A)
nursing
, including blood pressure monitoring and diabetes
treatment
;
(B)
physical, occupational, speech, or respiratory therapy;
(C)
medical social service;
(D)
intravenous therapy;
(E)
dialysis;
(F)
service provided by unlicensed personnel under the delegation
of a licensed health professional;
(G)
the furnishing of medical equipment and supplies, excluding
drugs and medicines; or
(H)
nutritional counseling.
(36)
[
(37)
[
(A)
are available 24 hours a day, seven days a week, during
the last stages of illness, during death, and during bereavement;
(B)
are provided by a medically directed interdisciplinary
team; and
(C)
may be provided in a
home
[
(38)
[
(39)
[
(40)
[
(41)
[
[
for home dialysis designation,
the physician, the registered nurse, the dietitian, and the qualified social
worker responsible for planning the care delivered to the home staff-assisted
dialysis patient; or]
[
[
(42)
[
(43)
[
(44)
[
(45)
[
(46)
[
(47)
[
(48)
[
(49)
[
(A)
dialogue with the client to discuss current eating habits,
exercise habits, food budget and problems with food preparation;
(B)
discussion of dietary needs to help the client understand
why certain foods should be included or excluded from the client's diet and
to help with adjustment to the new or revised or existing diet plan;
(C)
a personalized written diet plan as ordered by the client's
physician or practitioner, to include instructions for implementation;
(D)
providing the client with motivation to help him or her
understand and appreciate the importance of the diet plan in getting and staying
healthy; or
(E)
working with the client or the client's family members
by recommending ideas for meal planning, food budget planning, and appropriate
food gifts.
(50)
[
(51)
Original active client record--A
record composed first-hand for a client currently receiving services.
(52)
[
(A)
a corporation;
(B)
a limited liability company;
(C)
an individual;
(D)
a partnership if a partnership name is stated in a written
partnership agreement or an assumed name certificate;
(E)
all partners in a partnership if a partnership name is
not stated in a written partnership agreement or an assumed name certificate;
or
(F)
all co-owners under any other business arrangement.
(53)
[
(54)
[
(55)
[
(56)
[
(57)
[
(58)
[
(59)
[
(60)
[
(61)
[
(62)
[
(63)
[
(64)
[
(65)
[
(66)
[
(67)
[
(A)
assessment of alterations in mental status or evidence
of suicide ideations or tendencies;
(B)
teaching coping mechanisms or skills;
(C)
counseling activities; or
(D)
evaluation of the plan of care.
(68)
[
(69)
[
(70)
[
(71)
[
(72)
[
(73)
[
(74)
[
(75)
[
(76)
[
(A)
registered nurse;
(B)
licensed vocational nurse;
(C)
physical, occupational, or respiratory therapist;
(D)
speech-language pathologist;
(E)
audiologist;
(F)
social worker; or
(G)
dietitian.
(77)
[
(78)
[
(79)
[
(80)
[
(81)
[
(82)
[
(83)
[
(84)
[
(85)
[
(86)
[
§97.3.Licensing Fees.
(a)
(No change.)
(b)
If an applicant for an initial license [
(c)-(e)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 16, 2001.
TRD-200102148
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.11, 97.13 - 97.16
The amendments are proposed under the Health and Safety Code,
Chapter 142, which provides the department with the authority to adopt rules
for the licensing and regulation of home and community support services agencies.
The amendments implement the Health and Safety Code, Chapter 142.001-142.030.
§97.11.Application and Issuance of Initial License.
(a)-(f)
(No change.)
(g)
The applicant must apply for a license in accordance with
this subsection.
(1)-(2)
(No change.)
(3)
The following items must accompany the application form
and must be originals or notarized copies:
(A)
a description of the agency's service area. The service
area must be established in accordance with
§97.220 of this title
(relating to Service Areas);
[
§97.21(a)(7) of this
title (relating to Licensure Requirements and Standards for Agencies Providing
Licensed Home Health, Licensed and Certified Home Health, or Hospice Services)
for agencies providing licensed home health, licensed and certified home health,
or hospice services; or]
[
§97.26(b) of this title
(relating to Standards for Personal Assistance Services) for agencies with
the category of personal assistance services;]
(B)-(J)
(No change.)
(K)
for a parent agency:
(i)-(iv)
(No change.)
(v)
the resume or curriculum vitae of the agency administrator.
The resume or curriculum vitae must reflect that the administrator has the
qualifications described in
§97.244(a) of this title (relating to
Staffing Qualifications and Conditions);
[
[
§97.21(b)(3)(B) of this
title for agencies providing licensed home health, licensed and certified
home health, or hospice services; or]
[
§97.26(g) of this title
for agencies providing personal assistance services; and]
(vi)
the resume or curriculum vitae of the agency supervising
nurse (if applicable). The resume or curriculum vitae must reflect that the
supervising nurse has the qualifications described in
§97.244(b)
[
(L)-(S)
(No change.)
(T)
notice that the agency has attended a presurvey conference
at the office designated by DHS, or that the designated survey office has
waived the presurvey conference.
(i)-(ii)
(No change.)
(iii)
The designated survey office must verify compliance with
the applicable provisions of this chapter and recommend that the agency be
issued an initial license or that the application be denied pursuant to
§97.601
[
(U)-(V)
(No change.)
(4)-(6)
(No change.)
(h)-(i)
(No change.)
(j)
A DHS surveyor will conduct an onsite survey of the agency
after the issuance of the initial license.
(1)-(3)
(No change.)
(4)
At the time of the initial survey, the agency must:
(A)
(No change.)
(B)
assure that the administrator and supervising nurse or
designee(s), if applicable, are present at the entrance conference, available
during the survey, and present at the exit conference. If the administrator
and supervising nurse or designee(s) are not present at the surveyor's arrival,
the survey will not be conducted, the initial license may be revoked and the
renewal license denied in accordance with
§97.601
[
(5)
(No change.)
(6)
By applying for or holding a license, an agency consents
to entry and survey by DHS or a representative of DHS to verify compliance
with the statute or this chapter. The agency must provide a DHS representative
entry to the agency and access to documents in accordance with
§97.501(a)
[
(k)
A person who has requested the category of licensed and
certified home health services on the initial license application must also
make application for certification by the United States Department of Health
and Human Services (USDHHS) as a Medicare certified agency under the Social
Security Act, Title XVIII.
(1)-(2)
(No change.)
(3)
If HCFA denies certification to the person or if the person
withdraws application for participation in the Medicare program, the person
will retain the category of licensed home health services. An agency's retention
of the licensed home health services category does not preclude DHS from taking
enforcement action, as appropriate, under
Subchapter F of this chapter
(relating to Enforcement)
[
(l)
Continuing compliance with the minimum standards and the
provisions of this chapter for the services authorized to be provided under
the license is required during the initial licensing period in order for a
first renewal license to be issued.
[
An agency authorized under
the license to provide licensed home health, licensed and certified home health,
or hospice services must comply with §97.21 of this title.]
[
An agency authorized under
the license to provide licensed home health services must comply with §97.22
of this title (relating to Standards for Licensed Home Health Services).]
[
An agency authorized under
the license to provide licensed and certified home health services must comply
with §97.23 of this title (relating to Standards for Licensed and Certified
Home Health Services).]
[
An agency authorized under
the license to provide home dialysis must comply with §97.24 of this
title (relating to Standards for Home Dialysis Designation).]
[
An agency authorized under
the license to provide hospice services must comply with §97.25 of this
title (relating to Standards for Hospice Services).]
[
An agency which holds a license
with the category of personal assistance services must comply with §97.26
of this title (relating to Standards for Personal Assistance Services).]
(m)
If DHS determines that compliance with the minimum standards
and the provisions of this chapter is not substantiated after the issuance
of the initial license,
DHS
[
(n)
(No change.)
[
A person may not engage in
the business of providing home health, hospice, or personal assistance services,
or represent to the public that the person is a provider of home health, hospice,
or personal assistance services for pay or other consideration without a license.]
§97.13.Change of Ownership [
(a)
(No change.)
(b)
Agency procedures for change of ownership.
(1)-(3)
(No change.)
(4)
Failure to comply with the application procedures set out
in this section may result in an enforcement action(s) under
§97.601
[
(5)-(6)
(No change.)
(7)
DHS may deny issuance of a license for any of the reasons
specified in
§97.601
[
(8)
(No change.)
(c)
(No change.)
[
Notification procedures for
agency name change.]
[
If an agency changes the agency's name (legal
entity or doing business as), but does not undergo a change of ownership as
defined in subsection (a)(2) of this section, the agency must provide:]
[
written notification to DHS within five business
days prior the effective date of change;]
[
a copy of a certificate of amendment from the
Secretary of State's office or other governmental authority(ies), e.g., an
assumed name certificate, reflecting the name change to DHS within 30 days
of receipt of the certificate; and]
[
a copy of the agency's current federal tax
payer identification number.]
[
On receipt and verification of the certificate
of amendment and the current federal tax payor identification number, DHS
will provide the agency with a notification of change in the agency's new
name.]
[
Service change/agency closure
procedures.]
[
An agency must provide written notification
to DHS within five calendar days of the agency's receipt of notice of change
in state or federal certification or accreditation status. The licensee must
include a copy of the notice of change with its written notice to DHS.]
[
An agency must notify DHS
in writing within five calendar days prior to the cessation of operation of
the agency, branch office, or alternate delivery site.]
[
The agency must include in the written notice
the reason for closure, the location of the client records, and the name and
address of the client record custodian.]
[
If the agency closes with an active client
roster, the agency must transfer a copy of the active client record with the
client to the receiving agency in order to assure continuity of care and services
to the client.]
[
The agency must mail or return the initial
license or renewal license to DHS at the end of the day services were terminated.]
[
Continuing to operate after the closure date
specified in the notice may result in enforcement action.]
[
Procedures for adding or deleting
a category to the license. To add or delete a category to the license, the
agency must provide written notification to DHS at least 30 calendar days
prior to the addition or deletion of the category.]
[
DHS will approve or disapprove the addition
of a category.]
[
At the discretion of DHS, an agency must attend
a presurvey conference at the designated survey office prior to DHS approving
the addition of a category.]
[
If disapproved, DHS will inform the agency
of the reason for disapproval.]
[
At the discretion of DHS, an on-site survey
may be conducted following the approval of a category.]
[
DHS's receipt of an agency request to delete
a category from the license does not preclude DHS from taking enforcement
action as appropriate in accordance with §97.52 of this title (relating
to Enforcement Action).]
§97.14.Application and Issuance of a Branch Office License.
(a)
The Texas Department of Human Services (DHS) may issue
a branch office license to a person who holds a current agency license to
provide home health or personal assistance services. A person who holds a
current agency license is eligible to apply for a branch office license:
(1)
(No change.)
(2)
if enforcement action against the agency license is not
proposed under
Subchapter F
[
(b)
(No change.)
(c)
The parent agency applicant must submit to DHS:
(1)-(4)
(No change.)
(5)
a description of the branch office's service area. The
service area must meet the criteria in
§97.321(d)
[
(d)-(g)
(No change.)
(h)
DHS may propose denial of the application according to
§97.601
[
(i)-(k)
(No change.)
(l)
The branch office must comply with
§97.321
[
§97.15.Application and Issuance of an Alternate Delivery Site License.
(a)
The Texas Department of Human Services (DHS) may issue
an alternate delivery site license to a person who holds a current agency
license to provide hospice services. A person who holds a current agency license
to provide hospice services is eligible to apply for an alternate delivery
site license:
(1)
(No change.)
(2)
if enforcement action against the agency license is not
proposed under
Subchapter F of this chapter
[
(b)
(No change.)
(c)
The hospice must submit to DHS:
(1)-(4)
(No change.)
(5)
a description of the alternate delivery site's service
area. The service area must meet the criteria in
§97.322(d)
[
(d)-(g)
(No change.)
(h)
DHS may propose denial of the application according to
§97.601
[
(i)
(No change.)
(j)
The alternate delivery site must comply with
§97.403
[
(k)
(No change.)
§97.16.Time Periods for Processing and Issuing a License.
(a)
General.
(1)-(3)
(No change.)
(4)
An application for a change of ownership license is complete
when DHS has received, reviewed, and found acceptable the information described
in §97.13 of this title (relating to Change of Ownership [
(b)-(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102149
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.21 - 97.28
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The repeals implement the Health and Safety Code, Chapter 142.001- 142.030.
§97.21.Licensure Requirements and Standards for Agencies Providing Licensed Home Health, Licensed and Certified Home Health, or Hospice Services.
§97.22.Standards for Licensed Home Health Services.
§97.23.Standards for Licensed and Certified Home Health Services.
§97.24.Standards for Home Dialysis Designation.
§97.25.Standards for Hospice Services.
§97.26.Standards for Personal Assistance Services.
§97.27.Standards for Branch Offices.
§97.28.Standards for Alternate Delivery Sites.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102150
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.51 - 97.54
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The repeals implement the Health and Safety Code, Chapter 142.001- 142.030.
§97.51.Survey Procedures.
§97.52.Enforcement Action.
§97.53.Complaints.
§97.54.Criminal History Checks.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102151
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §97.61, §97.62
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The repeals implement the Health and Safety Code, Chapter 142.001- 142.030.
§97.61.Home Health Aides.
§97.62.Home Health Medication Aides.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102152
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §97.71, §97.72
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The repeals implement the Health and Safety Code, Chapter 142.001- 142.030.
§97.71.Home and Community Support Services Advisory Committee.
§97.72.Texas Department of Health {Texas Department of Human Services} /Board of Nurse Examiners Memorandum of Understanding Advisory Committee.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102153
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
1.
GENERAL PROVISIONS
40 TAC §97.201
The new section is proposed under the Health and Safety Code,
Chapter 142, which provides the department with the authority to adopt rules
for the licensing and regulation of home and community support services agencies.
The new section implements the Health and Safety Code, Chapter 142.001-142.030.
§97.201.Applicability.
This subchapter applies to all home and community support services
agencies providing licensed home health, licensed and certified home health,
hospice, or personal assistance services.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102154
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.211 - 97.222
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.211.Display of License.
The license must be displayed in a conspicuous place in the designated
place of business. If the information on the license is officially amended
during the licensure period, a notice must be posted beside the license to
provide public notice of the change.
§97.212.License Alteration Prohibited.
A license may not be altered.
§97.213.Agency Relocation.
(a)
A license must not be transferred from one location to
another without prior notification to the Texas Department of Human Services
(DHS). If an agency is considering relocation, the agency must notify DHS
30 calendar days prior to the intended relocation. DHS will provide written
notification to the agency amending the annual license to reflect the new
location.
(b)
The relocation of either a branch office or alternate delivery
site to a different parent agency requires submission of a new application
for the branch office or alternate delivery site, compliance with §97.14
of this title (relating to Application and Issuance of a Branch Office License)
and §97.15 of this title (relating to Application and Issuance of an
Alternate Delivery Site License) as appropriate, and approval of the application
by DHS.
§97.214.Telephone Number Change.
An agency must notify the Texas Department of Human Services in writing
prior to a change in its telephone number.
§97.215.Notification Procedures for Agency Name Change.
(a)
If an agency changes the agency's name (legal entity or
doing business as), but does not undergo a change of ownership as defined
in §97.13(a)(2) of this title (relating to Change of Ownership), the
agency must provide to the Texas Department of Human Services (DHS):
(1)
written notification within five business days prior the
effective date of change;
(2)
a copy of a certificate of amendment from the Secretary
of State's office or other governmental authority(ies), such as, an assumed
name certificate, reflecting the name change within 30 days of receipt of
the certificate; and
(3)
a copy of the agency's current federal tax payer identification
number.
(b)
On receipt and verification of the certificate of amendment
and the current federal tax payor identification number, DHS will provide
the agency with a notification of change in the agency's new name.
§97.216.Change in Agency Certification or Accreditation Status.
An agency must provide written notification to the Texas Department
of Human Services (DHS) within five calendar days of the agency's receipt
of notice of change in state or federal certification or accreditation status.
The licensee must include a copy of the notice of change with its written
notice to DHS.
§97.217.Agency Closure Procedures.
An agency must notify the Texas Department of Human Services (DHS)
in writing within five calendar days prior to the cessation of operation of
the agency, branch office, or alternate delivery site.
(1)
The agency must include in the written notice the reason
for closure, the location of the client records (active and inactive), and
the name and address of the client record custodian.
(2)
If the agency closes with an active client roster, the
agency must transfer a copy of the active client record with the client to
the receiving agency in order to assure continuity of care and services to
the client.
(3)
The agency must mail or return the initial license or renewal
license to DHS at the end of the day services were terminated.
(4)
Continuing to operate after the closure date specified
in the notice may result in enforcement action.
§97.218.Agency Organizational Changes.
An agency must notify the Texas Department of Human Services (DHS)
in writing immediately of any change in its agency administrator, controlling
person, or chief financial officer. DHS will perform a criminal history check
for a change in the administrator and the chief financial officer.
§97.219.Procedures for Adding or Deleting a Category to the License.
To add or delete a category to the license, the agency must provide
written notification to the Texas Department of Human Services (DHS) at least
30 calendar days prior to the addition or deletion of the category.
(1)
Additions. DHS will approve or disapprove the addition
of a category.
(A)
At the discretion of DHS, an agency must attend a presurvey
conference at the designated survey office prior to DHS approving the addition
of a category.
(B)
DHS will either approve or deny the addition within 30
days. An agency may not provide the service until written notice of approval
has been received from DHS.
(C)
If disapproved, DHS will inform the agency of the reason
for disapproval.
(D)
At the discretion of DHS, an on-site survey may be conducted
following the approval of a category.
(2)
Deletions. DHS's receipt of an agency request to delete
a category from the license does not preclude DHS from taking enforcement
action as appropriate in accordance with Subchapter F of this chapter (relating
to Enforcement Action).
§97.220.Service Areas.
(a)
Licensed service area. An agency must provide services
only within its licensed service area.
(b)
Staffing. The agency must maintain adequate staff to provide
services and to supervise the provision of services within the service area.
(c)
Expansion of service area. An agency may expand its service
area at any time during the licensure period.
(1)
Unless exempted under paragraph (2) of this subsection,
to expand its service area, an agency must submit to the Texas Department
of Human Services (DHS) a written notice 30 days prior to the expansion which
includes:
(A)
revised boundaries of the agency's original service area;
(B)
the effective date of the expansion; and
(C)
an updated list of management and supervisory personnel
(including names), if changes are made.
(2)
An agency will be exempted from the 30-day written notice
requirement under paragraph (1) of this subsection, if DHS determines an emergency
situation exists that would impact client health and safety. An agency must
notify DHS immediately of a possible emergency. DHS will determine if an exemption
can be granted.
(d)
Reduction of service area. An agency may reduce its service
area at any time during the licensure period by sending DHS written notification
of the reduction, the revised boundaries of the agency's original service
area, and the effective date of the reduction.
(e)
Branch office and alternate delivery site location. A branch
office or alternate delivery site must be located within the parent agency's
service area.
§97.221.Changing Ownership.
If there is a change of ownership as defined in §97.13 of this
title (relating to Change of Ownership), the license is void on the effective
date of the change. The prospective new owners must comply with §97.13
of this title (relating to Change of Ownership).
§97.222.Compliance.
An agency must maintain satisfactory compliance with all the provisions
of the statute and this chapter to maintain licensure.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102155
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.241 - 97.257
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.241.Management and Ownership.
The licensee is responsible for the conduct of the agency and assumes
full legal responsibility for adopting, implementing, enforcing, and monitoring
the written policies required throughout this chapter that govern the home
and community support services agency's total operation and for ensuring that
these policies comply with the Act and the applicable provisions of this chapter
and are administered to provide safe, professional, quality health care.
§97.242.Organizational Structure and Lines of Authority.
(a)
An agency must prepare a written document that identifies
the agency's organizational structure. The document may be either in the form
of a chart or a narrative.
(b)
The written organizational structure must clearly define,
at a minimum:
(1)
all services that are provided by the agency;
(2)
the governing body, the administrator, the supervising
nurse, and staff, as appropriate, based on services that are provided by the
agency; and
(3)
the lines of authority and the delegation of responsibility
down to and including the client care level.
§97.243.Management Responsibilities.
(a)
Administrator. The licensee must appoint an administrator
who meets the qualifications and conditions set out in §97.244(a) of
this title (relating to Staffing Qualifications and Conditions). The licensee
must also designate in writing a person who meets the qualifications of an
administrator to act in the absence of the administrator.
(1)
The administrator must be responsible for implementing
and supervising the administrative policies of the agency and supervising
the provision of all services. At a minimum, the administrator must:
(A)
organize and direct the agency's ongoing functions;
(B)
assure that the documentation of services provided is accurate
and timely;
(C)
employ qualified, competent personnel;
(D)
ensure adequate staff education and evaluations;
(E)
ensure the accuracy of public information materials and
activities;
(F)
implement an effective budgeting and accounting system;
and
(G)
supervise and evaluate client satisfaction survey reports
on all clients served.
(2)
The administrator or designee must be available during
the agency's usual working hours.
(b)
Supervising nurse.
(1)
An agency with a license to provide licensed home health,
licensed and certified home health, or hospice services must have a supervising
nurse.
(2)
The administrator must appoint a supervising nurse who
meets the qualifications set out in §97.244(b) of this title (relating
to Staffing Qualifications and Conditions). The administrator must also appoint
a similarly qualified alternate to serve as supervising nurse in the absence
of the supervising nurse.
(3)
The supervising nurse or designee must:
(A)
be available to the agency at all times. The supervising
nurse or designee may be available in person or via telecommunication;
(B)
participate in activities relevant to professional services
furnished including the development of qualifications and assignment of agency
personnel;
(C)
assure that a client's plan of care is executed as written;
(D)
assure that a reassessment of a client's needs is performed
by the appropriate health care professional:
(i)
when there is a significant health status change in the
client's condition;
(ii)
at the physician's request; or
(iii)
after hospital discharge.
(4)
The supervising nurse may also be the administrator of
the agency if the supervising nurse meets the qualifications of an administrator
described in §97.244(a) of this title (relating to Staffing Qualifications
and Conditions).
(5)
An agency that provides only physical, occupational, speech,
or respiratory therapy; medical social services; or nutritional counseling
is not required to have a supervising nurse. Supervision of these services
must be provided by the appropriate licensed professional, such as a physical
therapist supervising physical therapy services.
(c)
Supervision of branch offices and alternative delivery
sites. An agency must adopt and enforce a written policy relating to the supervision
of branch offices or alternate delivery sites, if established. This policy
must be consistent with:
(1)
for a branch office, §97.14 of this title (relating
to Application and Issuance of a Branch Office License) and §97.321 of
this title (relating to Standards for Branch Offices); or
(2)
for an alternate delivery site, §97.15 of this title
(relating to Application and Issuance of a Branch Office License) and §97.322
of this title (relating to Standards for Alternate Delivery Sites).
§97.244.Staffing Qualifications and Conditions.
(a)
Administrator, including the alternate or other designee.
(1)
Qualifications. The administrator must either:
(A)
be a physician, registered nurse, social worker, or nursing
home administrator; or
(B)
have a baccalaureate or postgraduate degree in administration
in a health or human services field and at least one year of full-time administrative
experience as the administrator of an agency or licensed health care facility;
or
(C)
have a high school diploma or a GED and have training and
experience in health service administration and at least one year of full-time
supervisory or administrative experience in a facility or agency, such as
a hospital, nursing facility, home health care, hospice, or related health
programs; or
(D)
if the agency is licensed to deliver personal assistance
services only, have a high school diploma or a general equivalency degree
(GED) and at least one year experience or training in caring for individuals
with functional disabilities.
(2)
Conditions. The administrator must:
(A)
be able to read, write, and comprehend English;
(B)
not have been employed in the last one year as an administrator
with another agency at the time the agency was cited with violations of the
statute or this chapter which resulted in enforcement action taken against
the agency. For purposes of this subparagraph only, the term "enforcement
action" means license revocation, suspension, emergency suspension, or denial
of a license or injunction action but does not include administrative or civil
penalties. If DHS prevails in one enforcement action, such as injunctive action,
against the agency but also proceeds with another enforcement action, such
as revocation, based on some or all of the same violations, but DHS does not
prevail in the second action (the agency prevails), the prohibition in this
subparagraph does not apply; and
(C)
not have been convicted of a felony or misdemeanor listed
in §97.601(b)(2) of this title (relating to License Denial, Suspension,
and Revocation); and
(D)
have documented completion of a minimum of six clock hours
per year at a health service administration seminar, the subject at which
may include cost reports, OSHA requirements for health care providers, home
and community support services rules and regulations, quality improvement
for health care providers, competency documentation and evaluation for skilled
staff, and peer review reporting.
(b)
Supervising nurse qualifications. The supervising nurse
and the designated alternate must:
(1)
be registered nurses licensed in the state of Texas or
in accordance with the Board of Nurse Examiners rules for Nurse Licensure
Compact (NLC); and
(2)
have at least two years of current experience as registered
nurses in a health care setting that provides care for children, adults, or
geriatric clients. For experience to be considered current, it must have been
obtained within the last three years and prior to assuming the role of supervising
nurse. One year of experience working as a consultant or in some other capacity
that entailed administering home health care standards may be substituted
for one year of the required nursing experience; or
(3)
if delivering home dialysis services, be:
(A)
a registered nurse licensed in the state of Texas or in
accordance with the Board of Nurse Examiners rules for Nurse Licensure Compact
(NLC) who:
(i)
has at least three years current experience in hemodialysis;
or
(ii)
has at least two years experience as an RN and holds a
current certification from a nationally recognized board in nephrology nursing
or hemodialysis; or
(B)
a nephrologist or physician with training or demonstrated
experience in the care of ESRD clients.
§97.245.Staffing Policies.
An agency must adopt and enforce written policies that govern all personnel
staffed by the agency. The policies must:
(1)
include requirements for orientation; training; and demonstration
of competency for tasks when competency can not be determined through education,
license or certification, or experience of all employees, volunteers (if used),
and contractors (if used) to the policies, procedures, and objectives of the
agency and participation by all personnel in employee training specific to
their job. The agency must provide a continuing systematic program for the
training of its employees. The staff, including volunteers (if used) and contractors
(if used), must be properly oriented to tasks performed, and these individuals
must be informed of changes in techniques, philosophies, goals, client's rights,
and products, relating to the client's care;
(2)
address participation by all personnel in appropriate employee
development programs;
(3)
include a written job description (statement of those functions
and responsibilities which constitute job requirements) and job qualifications
(specific education and training necessary to perform the job) for each position
within the agency;
(4)
include procedures for processing criminal history checks
of unlicensed personnel in accordance with §97.247 of this title (relating
to Criminal History Checks for Unlicensed Personnel);
(5)
ensure annual evaluation of employee and volunteer performance;
(6)
address employee and volunteer disciplinary action(s) and
procedures;
(7)
if volunteers are used by the agency, address the use of
volunteers. The policy must be in compliance with §97.248 of this title
(relating to Volunteers);
(8)
specify the qualifications, experience, and training in
pediatrics required for any registered nurse who provides or supervises direct
care staff in the provision of services to pediatric clients; and
(9)
include a requirement that all personnel who are direct
care staff and who have direct contact with clients (employed by or under
contract with the facility) sign a statement that they have read, understand,
and will comply with agency policies.
§97.246.Personnel Records.
(a)
An individual personnel record must be maintained on each
person employed by the agency, including volunteers. All information must
be kept current. A personnel record must include, but not be limited to, the
following:
(1)
job description and qualifications. In lieu of the job
description and qualifications for employment, the personnel record may include
a statement signed by the employee or volunteer that he has read the job description
and qualifications for the position accepted;
(2)
application for employment or volunteer agreement;
(3)
verification of license, permits, reference(s), job experience,
and educational requirements as appropriate; and
(4)
performance evaluations and disciplinary actions.
(b)
Original personnel files may be kept in any location as
determined by the agency. Original personnel files must be accessible and
readily retrievable for inspection by the department at the site of the survey.
§97.247.Criminal History Checks for Unlicensed Personnel.
(a)
An agency must comply with the Health and Safety Code,
Chapter 250, Nurse Aide Registry and Criminal History Checks of Employees
and Applicants for Employment in Certain Facilities Serving the Elderly or
Persons with Disabilities. Failure to comply will be grounds for denial, suspension,
or revocation of the agency's license in accordance with §97.601 of this
title (relating to License Denial, Suspension, and Revocation).
(b)
An agency may not employ a person in a position, the duties
of which involve direct contact with a consumer, unless the agency has applied
for a criminal history check on the applicant for employment and unless there
is an emergency.
(1)
An agency or a private entity working with the agency may
submit a request for a criminal history check to the Texas Department of Human
Services (DHS).
(2)
An agency may have a request submitted to the Texas Department
of Public Safety (DPS) by a private entity working with the agency, instead
of submitting the request to DHS.
(3)
If a private entity is used, it must submit requests in
a timely manner.
(4)
If the agency is a parent agency, the parent agency must
submit a request for a criminal history check on behalf of a branch office
or alternate delivery site.
(5)
The requirement to request a criminal history check only
applies if the person to be employed will have direct contact with a client
of the agency.
(6)
A criminal history check is not required if the applicant
for employment is licensed under Texas law and will be working within the
scope of that license.
(7)
Criminal history checks may be requested only for applicants
for employment to whom an offer of employment is made or, in the case of an
agency's change of ownership, current agency employees. Criminal history checks
may not be requested for persons who will not be employed by the agency, such
as volunteers or independent contractors. An employee or applicant for employment
is a person for whom the agency is or will be required to issue a W-2 form
on behalf of the person.
(8)
A previous criminal history check on the person done under
this section or through other means does not satisfy the requirements of the
law or this section. A new criminal history check must be requested for any
person each time an offer of employment is made to that person or for any
person employed by an agency undergoing a change of ownership.
(c)
An agency may employ an applicant in an emergency requiring
immediate employment under the following circumstances.
(1)
An emergency requiring immediate employment is a situation
in which the urgent need to hire an individual exists as a result of a survey
deficiency on staffing or the potential of the facility to fall below its
desired staff, thus putting a client's health and safety at risk.
(2)
The prospective employee must furnish to the agency a written
statement stating that he or she has no conviction for an offense described
in the Health and Safety Code, §250.006, which lists the types of offenses
which bar employment.
(3)
The written statements must be maintained in the agency
personnel records.
(4)
The agency or a private entity working with the agency
must request the criminal history check within 72 hours of employment for
a person employed in an emergency situation.
(d)
If an agency is not having the requests submitted directly
to the DPS by a private entity working with the agency, an agency must file
a request for a criminal history check on official DHS forms. The requests
must be forwarded to the designated representative of DHS. The request must
be completely filled out including the mailing address, other names or alias(es),
date of birth, race, and sex of the applicant or employee.
(e)
An agency must inform each person that applies for employment
that the agency is required to conduct a criminal history check prior to making
an offer of employment to the applicant (except in an emergency) and that
the agency will request a criminal history check on each applicant to whom
an offer of employment is made.
(f)
Convictions which are not reflected on the criminal history
received from DPS do not trigger the requirements of this section or the Health
and Safety Code, Chapter 250.
(g)
If DHS receives a criminal history from DPS, DHS will notify
the agency requesting the check of the results. Criminal histories for employees
of or applicants for employment to a branch office or alternate delivery site
will be sent to the parent agency. The parent agency must notify the branch
office or alternate delivery site of the findings.
(h)
The agency must inform the person how corrections to the
criminal history may be made by contacting DPS.
(1)
Such corrections may include updating or making accurate
the conviction information or clarifying that the conviction is actually the
conviction of another person.
(2)
DHS will not provide assistance in correcting a criminal
history.
(3)
It is the responsibility of the applicant for employment
or the employee to correct errors of fact or identity in the criminal history
received from DPS. The individual should contact DPS directly and provide
whatever positive identification information may be required for a verification
of the record and request a corrected criminal history.
(i)
The special provisions of the Health and Safety Code, Chapter
250, concerning nurse aides and the nurse aide registry, do not apply to persons
hired as home health aides.
(j)
An agency must immediately discharge any employee in a
position the duties of which involve direct contact with a client if the criminal
history reveals a conviction of a crime listed in the Health and Safety Code, §250.006,
that bars employment.
(k)
It is not necessary for the agency to notify DHS of any
actions taken in response to the results of the criminal history on any individual.
(l)
The criminal history records and the information they contain
may not be released or otherwise disclosed to any person or entity other than
the subject of the information, except on court order or with the written
consent of the person being investigated.
(1)
An agency may not share information with another agency
or other providers except with the written consent of the person who is the
subject of the criminal history check.
(2)
It is a criminal offense to release information in violation
of the law.
§97.248.Volunteers.
(a)
This section applies to all licensed agencies. However,
agencies licensed and certified to provide hospice services must also comply
with 42 Code of Federal Regulations, Part 418.70, Medicare Conditions of Participation,
relating to Volunteers.
(b)
If an agency utilizes volunteers, the agency must use volunteers
in defined roles under the supervision of a designated agency employee.
(1)
A volunteer must meet the same requirements and standards
in this chapter as apply to an employee of the agency doing the same activities
unless the volunteer is exempt under this chapter from certain requirements
or standards.
(2)
Volunteers may be used in administrative and direct client
care roles.
(3)
The agency must document the level of volunteer activity.
(4)
The agency must record expansion of care and services achieved
through the use of volunteers, including type of services and the time worked.
§97.249.Reports of Abuse, Neglect, and Exploitation.
An agency must adopt and enforce a written policy relating to the reporting
of abuse, neglect or exploitation of clients.
(1)
In this section, "abuse," "exploitation," and "neglect"
have the meanings assigned by §48.002, Human Resources Code.
(2)
An agency that has cause to believe that a client has been
abused, exploited, or neglected by an employee of the agency must report the
information upon discovery to:
(A)
the Texas Department of Human Services at 1-800-228-1570;
and
(B)
the Texas Department of Protective and Regulatory Services
at 1- 800-252-5400.
§97.250.Complaint Investigation.
(a)
An agency must adopt and enforce a written policy relating
to the agency's procedures for investigating complaints. Such procedures must
require the agency to:
(1)
investigate complaints made by a client or the client's
family or guardian or the client's health care provider regarding treatment
or care that is (or fails to be) furnished or regarding the lack of respect
for the client's property by anyone furnishing services on behalf of the agency;
(2)
document the receipt of the complaint and initiate a complaint
investigation within 10 calendar days of the agency's receipt of the complaint;
(3)
document all components of the investigation; and
(4)
complete the investigation and documentation within 30
calendar days after the agency receives the complaint, unless the agency has
and documents reasonable cause for a delay.
(b)
An agency may not retaliate against a person for filing
a complaint, presenting a grievance, or providing in good faith information
relating to home health, hospice or personal assistance services provided
by the agency.
(c)
An agency is not prohibited from terminating an employee
for a reason other than retaliation.
§97.251.Peer Review.
An agency must adopt and enforce a written policy to ensure that all
professional disciplines comply with their respective professional practice
acts or title acts relating to reporting and peer review.
§97.252.Financial Solvency and Business Records.
An agency must have the financial ability to carry out its functions.
(1)
An agency must not intentionally or knowingly pay employees
with checks from accounts with insufficient funds.
(2)
An agency must have sufficient funds to meet its payroll.
(3)
The agency must make available to the Texas Department
of Human Services (DHS) upon request business records relating to its ability
to carry out its functions. If there is a question relating to the accuracy
of the records or the agency's financial ability to carry out its functions,
DHS or its designee may conduct a more extensive review of the records. Any
financial review by DHS will be conducted by an individual who has the financial
qualifications to review such records.
(4)
An agency must maintain business records in their original
state. Each entry must be accurate and dated with the date of entry. Correction
fluid or tape may not be used in the record. Corrections must be made in accordance
with standard accounting practices.
§97.253.Disclosure of Drug Testing Policy.
(a)
An agency that conducts drug testing of its employees must
adopt and enforce a written policy governing drug testing of its employees.
(b)
An agency must provide a written statement describing the
agency's policy for the drug testing of employees who have direct contact
with clients to the following persons:
(1)
each person applying for services from the agency; and
(2)
any person requesting the information.
§97.254.Billing and Insurance Claims.
The agency must adopt and enforce a written policy to ensure that the
agency submits accurate billings and insurance claims.
§97.255.Prohibition of Solicitation of Patients.
The agency must adopt and enforce a written policy to ensure compliance
of the agency and its employees and contractors with the Occupations Code,
Chapter 102 (concerning the Solicitation of Patients). For the purpose of
this section a patient is considered to be a client.
§97.256.Natural Disaster Preparedness.
The agency must adopt and enforce a written policy that includes a
plan for publicly known natural disaster preparedness for clients receiving
services. The written policy must include a plan for the reasonable mechanism
for triaging clients, the notification of appropriate personnel and clients
in the event of a disaster if possible, the identification of appropriate
community resources, and the identification of possible evacuation procedures.
The plan need not require that the agency actually evacuate, transport, or
triage the clients.
§97.257.Medicare Certification Optional.
(a)
An agency which makes application for licensed and certified
home health category of service must comply with the regulations in the Medicare
Conditions of Participation for Home Health Agencies, 42 Code of Federal Regulations
(CFR), Part 484, pending approval of certification granted by the Health Care
Financing Administration (HCFA). An agency providing hospice services and
applying for participation in the Medicare program must comply with the Medicare
Conditions of Participation for Hospice Services, 42 CFR, Part 418.
(b)
Upon the Texas Department of Human Services' (DHS's) receipt
of written approval from HCFA, DHS will amend the licensing status of the
agency to include the licensed and certified home health services category.
The agency must then comply with §97.402 of this title (relating to
Standards Specific to Licensed and Certified Home Health Services).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102156
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.281 - 97.303
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.281.Client Care Policies.
The agency must adopt and enforce a written policy that specifies the
agency's client care policies, which may include, as appropriate, clinical
procedures, client rights, transfer and discharge procedures.
§97.282.Client Rights.
An agency must adopt and enforce a written policy governing client
conduct and responsibility and client rights in accordance with this section.
(1)
In advance of furnishing care to the client or during the
initial evaluation visit before the initiation of treatment, the agency must
provide each client or their legal representative with a written notice of
all rules and regulations governing client conduct and responsibility and
client rights.
(2)
The client has the right to be informed in advance about
the care to be furnished, the plan of care, expected outcomes, barriers to
treatment and of any changes in the care to be furnished. The agency must
ensure that an informed consent form that specifies the type of care and services
that may be provided by the agency during the course of the illness has been
obtained for every client, either from the client or their legal representative.
The client or the legal representative must sign or mark the consent form.
(3)
The client has the right to participate in the planning
of the care or treatment and in planning changes in the care or treatment.
(A)
The agency must advise or consult with the client or legal
representative in advance of any change in the plan of care.
(B)
The client has the right to refuse care and services.
(C)
The client has the right to be informed, before care is
initiated, of the extent to which payment may be expected from the client,
third-party payors, and any other source of funding known to the agency.
(4)
The agency must protect and promote a client's rights.
(5)
A client has the right to have assistance in understanding
and exercising his or her rights. The agency must maintain documentation showing
that it has complied with the requirements of this paragraph and that the
client demonstrates understanding of their rights.
(6)
The client has the right to exercise his or her rights
as a client of the agency.
(7)
In the case of a client adjudged incompetent, the rights
of the client are exercised by the person appointed by law to act on the client's
behalf.
(8)
In the case of a client who has not been adjudged incompetent,
any legal representative may exercise the client's rights to the extent permitted
by law.
(9)
The client has the right to have his or her person and
property treated with consideration, respect, and full recognition of his
or her individuality and personal needs.
(10)
The client has the right to confidential treatment of
his or her personal and medical records.
(11)
The client has the right to voice grievances regarding
treatment or care that is or fails to be furnished, or regarding the lack
of respect for property by anyone who is furnishing services on behalf of
the agency and must not be subjected to discrimination or reprisal for doing
so. There must be a written grievance mechanism under which a client can participate
without fear of reprisal.
(12)
An agency must comply with the provisions of the Human
Resources Code, Chapter 102, concerning the rights of the elderly.
§97.283.Advance Directives.
(a)
An agency must maintain a written policy regarding implementation
of advance directives. The policy must be in compliance with the Advance Directives
Act, Health and Safety Code, Chapter 166.
(1)
The policy must include a clear and precise statement of
any procedure the agency is unwilling or unable to provide or withhold in
accordance with an advance directive.
(2)
Except as provided by paragraph (4) of this subsection,
the agency must provide written notice to an individual of the written policy
required by this subsection. The notice must be provided at the earlier of:
(A)
the time the individual is admitted to receive services
from the agency; or
(B)
the time the agency begins providing care to the individual.
(3)
If, at the time notice is to be provided under paragraph
(2) of this subsection, the individual is incompetent or otherwise incapacitated
and unable to receive the notice required by this subsection, the agency must
provide the required written notice, in the following order of preference,
to:
(A)
the individual's legal guardian;
(B)
a person responsible for the health care decisions of the
individual;
(C)
the individual's spouse;
(D)
the individual's adult child;
(E)
the individual's parent; or
(F)
the person admitting the individual.
(4)
If paragraph (3) of this subsection applies and except
as provided by paragraph (5) of this subsection, if an agency is unable, after
diligent search, to locate an individual listed by paragraph (3) of this subsection,
the agency is not required to provide the notice.
(5)
If an individual who was incompetent or otherwise incapacitated
and unable to receive the notice required by this subsection at the time notice
was to be provided under paragraph (2) of this subsection later becomes able
to receive the notice, the agency must provide the written notice at the time
the individual becomes able to receive the notice.
(b)
The Texas Department of Human Services (DHS) will assess
an administrative penalty of $500 against an agency that violates subsection
(a) of this section, relating to requirements for the provision of a written
statement relating to advance directives. DHS will provide notice of administrative
penalty and opportunity for a hearing in accordance with §97.602 of this
title (relating to Administrative Penalties).
§97.284.Laboratory Services.
An agency that provides laboratory services must adopt, and enforce
a written policy to ensure that the agency meets the Clinical Laboratory Improvement
Act, 42 United States Code Annotated, §263a, (CLIA 1988). CLIA 1988 applies
to all agencies with laboratories that examine human specimens for the diagnosis,
prevention, or treatment of any disease or impairment of, or the assessment
of the health of, human beings.
§97.285.Infection Control.
An agency must adopt and enforce written policies addressing infection
control including the prevention of the spread of infectious and communicable
disease. The policies must:
(1)
ensure compliance with the Communicable Disease Prevention
and Control Act, Health and Safety Code, Chapter 81;
(2)
ensure compliance with Occupational Safety and Health Administration
(OSHA), 29 CFR Part 1910.1030 relating to Bloodborne Pathogens and Appendix
A to 1910.1030;
(3)
require documentation of infections that are acquired while
the client is receiving services from the agency. Documentation must include
at a minimum the date that the infection was determined to be present, the
client's name, primary diagnosis, signs/symptoms, type of infection, pathogens
identified and treatment; and
(4)
ensure compliance of the agency and its employees and contractors
with the Health and Safety Code, Chapter 85, Subchapter I, concerning the
prevention of the transmission of human immunodeficiency virus and hepatitis
B virus.
§97.286.Disposal of Special or Medical Waste.
(a)
An agency must adopt and enforce a written policy for the
safe handling and disposal of biohazardous waste and materials, if applicable.
(b)
An agency that generates special or medical waste while
providing home health services must dispose of the waste according to the
requirements in 25 TAC, §§1.131-1.137 (relating to Definition, Treatment,
and Disposition of Special Waste from Health Care-Related Facilities). An
agency must provide both verbal and written instructions to the agency's clients
regarding the proper procedure for disposing of sharps. For purposes of this
subsection, sharps include hypodermic needles, hypodermic syringes with attached
needles, scalpel blades, razor blades, disposable razors, disposable scissors
used in medical procedures, and intravenous stylets and rigid introducers.
§97.287.Quality Assurance.
(a)
Quality Assurance (QA) Program.
(1)
An agency must maintain a QA Program that will be implemented
by a QA Committee. The QA Program must be ongoing, focused on client outcomes
that are measurable, and have a written plan of implementation. This plan
must be reviewed and updated or revised at least once within a calendar year,
or more often if needed, by the QA Committee. The QA Program must include:
(A)
a system of measures that captures significant outcomes
that are essential to optimal care, are used in the care planning and coordination
of services and events, and are an essential part of the agency's quality
assessment and performance improvement program. The measures must include
at a minimum:
(i)
an analysis of a representative sample of services furnished
to clients contained in both active and closed records;
(ii)
a review of:
(I)
negative client care outcomes;
(II)
issues of unprofessional conduct by staff;
(III)
infection control activities; and
(IV)
medication errors;
(iii)
a determination that services have been performed as
outlined in the service plan, care plan, or plan of care; and
(iv)
an analysis of client complaint and satisfaction survey
data; and
(B)
an annual evaluation of the total operation, including
services provided under contract or arrangement. The findings are to be used
by the agency to correct identified problems and to revise policies, if necessary.
(2)
QA documents must be kept confidential and available to
the Texas Department of Human Services (DHS) staff upon request.
(b)
QA Committee membership. At a minimum, the QA Committee
must consist of at least:
(1)
the administrator;
(2)
the supervising nurse/therapist, or the supervisor of an
agency licensed to provide personal assistance services (PAS) if delegating
health related tasks; and
(3)
a representative from each skilled and unskilled discipline
providing services.
(c)
Frequency of QA Committee meeting. The QA Committee must
meet at least quarterly.
§97.288.Coordination of Services.
(a)
An agency must adopt and enforce a policy to require that
all service providers involved in the care of a client, including contracted
health care professionals or another agency, are engaged in an effective interchange,
reporting, and coordination of care regarding the client.
(b)
The agency must document the steps taken to meet subsection
(a) of this section in the client record.
§97.289.Independent Contractors and Arranged Services.
(a)
Independent contractors. If an agency uses independent
contractors, there must be a contract between each independent contractor
that performs services on a per-visit per-hour basis and the agency. The contract
must be enforced by the agency and clearly designate:
(1)
that clients are accepted for care only by the licensed
agency;
(2)
the services to be provided;
(3)
the necessity to conform to all applicable agency policies,
including personnel qualifications;
(4)
the plan of care or care plan to be carried out;
(5)
the manner in which services will be coordinated and evaluated
by the licensed agency in accordance with §97.288 of this title (relating
to Coordination of Services);
(6)
the procedures for:
(A)
submitting information and documentation regarding the
client's needs and services, including clinical and progress notes;
(B)
scheduling of visits;
(C)
periodic client evaluation or supervision; and
(D)
determining charges and reimbursement.
(b)
Arranged services. Services provided by an agency under
arrangement with another agency or organization must be provided under written
agreement conforming with the requirements specified in subsection (a) of
this section.
§97.290.Backup Services and After Hours Care.
(a)
Backup services. An agency must adopt and enforce a written
policy to ensure that back-up services are available when an employee or contractor
is not able to deliver the services.
(b)
After hours care. An agency must adopt and enforce a policy
to ensure that clients are educated in how to access care from another health
care provider after regular business hours.
§97.291.Agency Dissolution.
An agency must adopt and enforce a written policy which describes the
agency's written contingency plan.
(1)
The plan must be implemented in the event of dissolution
to assure continuity of client care.
(2)
The plan must:
(A)
be consistent with §97.295 of this title (relating
to Client Transfer or Discharge Notification Requirements);
(B)
include procedures for:
(i)
notifying the client of the agency's dissolution;
(ii)
documenting the notification;
(iii)
carrying out the notification; and
(C)
comply with §97.217(2) of this title (relating to
Agency Closure Procedures).
§97.292.Agency and Client Agreement and Disclosure.
(a)
The agency must provide the client or the client's family
with a written agreement for services. The agency must comply with the terms
of the agreement. The agreement must include at a minimum the following:
(1)
notification of client rights;
(2)
documentation concerning notification to the client of
the availability of durable power of attorney for health care, advance directive
or "Do Not Resuscitate" orders in accordance with the applicable law;
(3)
services to be provided;
(4)
supervision by the agency of services provided;
(5)
agency charges for services rendered if the charges will
be paid in full or in part by the client or the client's family, or on request;
(6)
agency's policy relating to the reporting of abuse, neglect
or exploitation of a client; and
(7)
a client agreement to and acknowledgement of services by
home health medication aides, if home health medication aides are used.
(b)
The agency must obtain an acknowledgment of receipt from
the client or his family of the items listed under subsection (a) of this
section. This acknowledgment of receipt must be kept in the client's record.
§97.293.Client List and Services.
An agency must maintain a current list of clients for each category
of service licensed.
(1)
The list must include all services being delivered by the
agency and services being delivered under contract.
(2)
The client list must include the client's name, identification
or clinical record number, start of care date or admission date, certification
period (if applicable), diagnosis(es), and the disciplines that are providing
services.
§97.294.Time Frame(s) for the Initiation of Care or Services.
An agency must adopt and enforce a written policy establishing time
frame(s) for the initiation of care or services.
§97.295.Client Transfer or Discharge Notification Requirements.
(a)
Except in an emergency, an agency intending to transfer
or discharge a client must notify the client or the client's parent, family,
spouse, significant other, or legal representative, and the client's attending
physician (if applicable) not later than five days before the date on which
the client will be transferred or discharged.
(b)
An agency may transfer or discharge a client without five
days notice required by subsection (a) of this section:
(1)
upon the client's request;
(2)
if the client's medical needs require transfer, such as
a medical emergency;
(3)
in the event of a natural disaster when the client's health
and safety is at risk;
(4)
for the protection of staff or a client after the agency
has made a documented reasonable effort to notify the client, the client's
family and physician, and appropriate state or local authorities of the agency's
concerns for staff or client safety, and in accordance with agency policy;
(5)
according to physician orders; or
(6)
if the client fails to pay for services, except as prohibited
by federal law.
(c)
The agency must document notice required by subsection
(a) of this section in the client's file.
§97.296.Physician Delegation and Performance of Physician-Delegated Tasks.
(a)
If performing physician delegation, an agency must adopt
and enforce a written policy describing protocols and procedures agency staff
must follow when performing physician-delegated tasks.
(1)
The policy must comply with the Medical Practice Act, Occupations
Code, Chapter 157, concerning physician delegation.
(2)
The policy must address the time frame for the timely counter
signature of a physician's verbal orders.
(b)
An agency may accept delegation from a physician only if
the agency receives the following from the physician:
(1)
the name of the client;
(2)
the name of the delegating physician;
(3)
the task(s) to be performed;
(4)
the name of the individual(s) to perform the task(s);
(5)
the time frame for the delegation order; and
(6)
if the task is medication administration, the medication
to be given, route, dose, and frequency.
§97.297.Receipt of Physician Orders.
An agency must adopt and enforce a written policy describing protocols
and procedures agency staff must follow when receiving physician orders.
(1)
The policy must address the time frame for countersignature
of physician verbal orders.
(2)
Signed physician orders may be submitted via facsimile
machine. The agency is not required to have the original signatures on file.
However, the agency must be able to obtain original signatures if an issue
surfaces that would require verification of an original signature. The policy
must include protocols to follow when accepting physician orders via facsimile.
If physician orders are accepted via facsimile, the policy must:
(A)
outline safeguards to assure that transmitted information
is sent to the appropriate individual; and
(B)
outline the procedures to be followed in the case of misdirected
transmission.
§97.298.Delegation of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel.
An agency must adopt and enforce a written policy to ensure compliance
with the rules of the Board of Nurse Examiners for the State of Texas adopted
at 22 TAC Chapter 218 (Delegation of Selected Nursing Tasks by Registered
Professional Nurses to Unlicensed Personnel).
§97.299.Vocational Nursing Education, Licensure and Practice.
An agency must adopt and enforce a written policy to ensure compliance
with the rules of the Board of Vocational Nurse Examiners adopted at 22 TAC
Chapters 231-240 (relating to Vocational Nursing Education, Licensure and
Practice in the State of Texas).
§97.300.Medication Administration.
An agency must adopt and enforce a written policy for maintaining a
current medication list and medication administration record. Administration
of medication must be ordered by the client's practitioner. A current medication
list and medication administration records may be incorporated into one document.
Notation must be made in the medication administration record or clinical
notes of medications not given and the reason. Any adverse reaction must be
reported to a supervisor and documented in the client record on the day of
occurrence.
§97.301.Client Records.
(a)
In accordance with accepted principles of practice, an
agency must establish and maintain a client record system to assure that the
care and services provided to each client is completely and accurately documented,
readily accessible and systematically organized to facilitate the compilation
and retrieval of information.
(1)
An agency must establish a record for each client which
is maintained in accordance with and contains the information described in
paragraph (9) of this subsection. An agency must keep a single file or separate
files for each category of service provided to the client and the client's
family. Hospice services provided to a client's family must be documented
in the clinical record.
(2)
The agency must adopt and enforce written procedures regarding
the use and removal of records, the release of information, and when applicable,
the incorporation of clinical, progress, or other notes into the client record.
An agency may not release any portion of a client record to anyone other than
the client except as allowed by law.
(3)
All information regarding the client's care and services
must be centralized in the client's record and be protected against loss or
damage.
(4)
The agency must establish an area for original active client
record storage at the agency's place of business. The original active client
record must be stored at the place of business (parent agency, branch office,
or alternate delivery site) from which services are actually provided. Original
active client records must not be stored at an administrative support site
or records storage facility.
(5)
The agency must ensure that each client's record is treated
with confidentiality, safeguarded against loss and unofficial use, and is
maintained according to professional standards of practice.
(6)
The clinical record must be an original, a microfilmed
copy, an optical disc imaging system, or a certified copy. An original record
includes manually signed paper records or electronically signed computer records.
Computerized records must meet all requirements of paper records including
protection from unofficial use and retention for the period specified in subsection
(b) of this paragraph. Systems must assure that entries regarding the delivery
of care or services are not altered without evidence and explanation of such
alteration.
(7)
Each entry to the client record must be current, accurate,
signed, and dated with the date of entry by the individual making the entry.
The record must include all services whether furnished directly or under arrangement.
Correction fluid or tape must not be used in the record. Corrections must
be made by striking through the error with a single line and must include
the date the correction was made and the initials of the person making the
correction.
(8)
Inactive client records may be preserved on microfilm,
optical disc or other electronic means and may be stored at the parent agency
location, branch office, alternate delivery site, administrative support site,
or records storage facility. Security must be maintained and the record must
be readily retrievable by the agency.
(9)
Each client record must include (as applicable):
(A)
client application for services including, but not limited
to: full name; sex; date of birth; name, address, and telephone number of
parent(s) of a minor child, or legal guardian, or other(s) as identified by
the individual; physician's name and telephone numbers, including emergency
numbers; and services requested;
(B)
initial health assessment, pertinent medical history, and
subsequent health assessments;
(C)
care plan, plan of care, or individualized service plan,
as applicable. The care plan or the plan of care must include, as applicable,
medication, dietary, treatment, and activities orders. The requirements for
the individualized service plan for personal assistance service clients are
located in §97.404 of this title (relating to Standards Specific to Agencies
Licensed to Provide Personal Assistance Services). The requirements for the
plan of care for hospice clients are located in §97.403 of this title
(relating to Standards Specific to Agencies Licensed to Provide Hospice Services);
(D)
clinical and progress notes. Such notes are to be written
the day service is rendered and incorporated into the client record within
14 days;
(E)
current medication list;
(F)
medication administration record (if medication is administered
by agency staff). Notation must also be made in the medication administration
record or in the clinical notes of medications not given and the reason. Any
adverse reaction must be reported to a supervisor and documented in the client
record;
(G)
records of supervisory visits;
(H)
complete documentation of all known services and significant
events. Documentation must show that effective interchange, reporting, and
coordination of care occurs as required in §97.288 of this title (relating
to Coordination of Services);
(I)
for clients 60 years and older, acknowledgment of the client's
receipt of a copy of the Human Resources Code, Chapter 102, Rights of the
Elderly;
(J)
acknowledgment of the client's receipt of the agency's
policy relating to the reporting of abuse, neglect, or exploitation of a client;
(K)
documentation that the client has received a copy of the
agency's complaint procedures;
(L)
client agreement to and acknowledgment of services by home
health medication aides, if home health medication aides are used;
(M)
discharge summary, including the reason for discharge or
transfer and the agency's documented notice to the client, the client's physician
(if applicable), and other individuals as required in §97.295 of this
title (relating to Client Transfer or Discharge Notification Requirements);
(N)
acknowledgement of receipt of the notice of advance directives;
(O)
services provided to the client's family (as applicable);
and
(P)
consent and authorization and election forms, as applicable.
(b)
An agency must adopt and enforce a written policy relating
to the retention of records in accordance with this subsection.
(1)
An agency must retain original client records for a minimum
of five years after the discharge of the client.
(2)
The agency may not destroy client records that relate to
any matter that is involved in litigation if the agency knows the litigation
has not been finally resolved.
(3)
There must be an arrangement for the preservation of inactive
records to insure compliance with this subsection.
§97.302.Pronouncement of Death.
An agency must adopt and enforce a written policy on pronouncement
of death if that function is carried out by an agency registered nurse. The
policy must be in compliance with the Health and Safety Code, §671.001
(concerning Determination of Death and Autopsy Reports).
§97.303.Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs.
An agency which possesses sterile water or saline, certain vaccines
or tuberculin, or certain dangerous drugs as specified by this section, must
comply with the provisions of this section.
(1)
Possession of sterile water or saline. An agency or its
employees who are registered nurses or licensed vocational nurses may purchase,
store, or transport for the purpose of administering to their home health
or hospice clients under physician's orders:
(A)
sterile water for injection and irrigation; and
(B)
sterile saline for injection and irrigation.
(2)
Possession of certain vaccines or tuberculin.
(A)
An agency or its employees who are registered nurses or
licensed vocational nurses may purchase, store, or transport for the purpose
of administering to the agency's employees, home health, or hospice clients,
or client family members under physician's standing orders the following dangerous
drugs:
(i)
hepatitis B vaccine;
(ii)
influenza vaccine; and
(iii)
tuberculin purified protein derivative for tuberculosis
testing.
(B)
An agency that purchases, stores, or transports a vaccine
or tuberculin under this section must ensure that any standing order for the
vaccine or tuberculin:
(i)
is signed and dated by the physician;
(ii)
identifies the vaccine or tuberculin covered by the order;
(iii)
indicates that the recipient of the vaccine or tuberculin
has been assessed as an appropriate candidate to receive the vaccine or tuberculin
and has been assessed for the absence of any contraindication;
(iv)
indicates that appropriate procedures are established
for responding to any negative reaction to the vaccine or tuberculin; and
(v)
orders that a specific medication or category of medication
be administered if the recipient has a negative reaction to the vaccine or
tuberculin.
(3)
Possession of certain dangerous drugs.
(A)
In compliance with Health and Safety Code, §142.0063,
an agency or its employees who are registered nurses or licensed vocational
nurses may purchase, store, or transport for the purpose of administering
to their home health or hospice patients, in accordance with subparagraph
(C) of this paragraph, the following dangerous drugs:
(i)
any of the following items in a sealed portable container
of a size determined by the dispensing pharmacist:
(I)
1,000 milliliters of 0.9% sodium chloride intravenous infusion;
(II)
1,000 milliliters of 5.0% dextrose in water injection;
or
(III)
sterile saline; or
(ii)
not more than five dosage units of any of the following
items in an individually sealed, unused portable container:
(I)
heparin sodium lock flush in a concentration of 10 units
per milliliter or 100 units per milliliter;
(II)
epinephrine HCI solution in a concentration of one to
1,000;
(III)
diphenhydramine HCI solution in a concentration of 50
milligrams per milliliter;
(IV)
methylprednisolone in a concentration of 125 milligrams
per two milliliters;
(V)
naloxone in a concentration of one milligram per milliliter
in a two-milliliter vial;
(VI)
promethazine in a concentration of 25 milligrams per milliliter;
(VII)
glucagon in a concentration of one milligram per milliliter;
(VIII)
furosemide in a concentration of 10 milligrams per milliliter;
(IX)
lidocaine 2.5% and prilocaine 2.5% cream in a five-gram
tube; or
(X)
lidocaine HCL solution in a concentration of 1% in a two-milliliter
vial.
(B)
An agency or the agency's authorized employees may purchase,
store, or transport dangerous drugs in a sealed portable container only if
the agency has established policies and procedures to ensure that:
(i)
the container is handled properly with respect to storage,
transportation, and temperature stability;
(ii)
a drug is removed from the container only on a physician's
written or oral order;
(iii)
the administration of any drug in the container is performed
in accordance with a specific treatment protocol; and
(iv)
the agency maintains a written record of the dates and
times the container is in the possession of a registered nurse or licensed
vocational nurse.
(C)
An agency or the agency's authorized employee who administers
a drug listed in subparagraph (A) of this paragraph may administer the drug
only in the client's residence under physician's orders in connection with
the provision of emergency treatment or the adjustment of:
(i)
parenteral drug therapy; or
(ii)
vaccine or tuberculin administration.
(D)
If an agency or the agency's authorized employee administers
a drug listed in subparagraph (A) of this paragraph pursuant to a physician's
oral order, the agency must receive a signed copy of the order:
(i)
not later than 24 hours after receipt of the order, reduce
the order to written form and send a copy of the form to the dispensing pharmacy
by mail or facsimile transmission; and
(ii)
not later than 20 days after receipt of the order, send
a copy of the order as signed by and received from the physician to the dispensing
pharmacy.
(E)
A pharmacist that dispenses a sealed portable container
under this subsection will ensure that the container:
(i)
is designed to allow access to the contents of the container
only if a tamper-proof seal is broken;
(ii)
bears a label that lists the drugs in the container and
provides notice of the container's expiration date, which is the earlier of:
(I)
the date that is six months after the date on which the
container is dispensed; or
(II)
the earliest expiration date of any drug in the container;
and
(iii)
remains in the pharmacy or under the control of a pharmacist,
registered nurse, or licensed vocational nurse.
(F)
If an agency or the agency's authorized employee purchases,
stores, or transports a sealed portable container under this subsection, the
agency must deliver the container to the dispensing pharmacy for verification
of drug quality, quantity, integrity, and expiration dates not later than
the earlier of:
(i)
the seventh day after the date on which the seal on the
container is broken; or
(ii)
the date for which notice is provided on the container
label.
(G)
A pharmacy that dispenses a sealed portable container under
this section is required to take reasonable precautionary measures to ensure
that the agency receiving the container complies with subparagraph (F) of
this paragraph. On receipt of a container under subparagraph (F) of this paragraph,
the pharmacy will perform an inventory of the drugs used from the container
and will restock and reseal the container before delivering the container
to the agency for reuse.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102157
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §97.321, §97.322
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.321.Standards for Branch Offices.
(a)
A parent agency is eligible to apply for a branch office
license:
(1)
if the agency has successfully completed an initial onsite
survey; or for an agency with a first renewal or subsequent renewal license,
if the agency continues to demonstrate substantial compliance with the statute
and this chapter; and
(2)
if enforcement action against the agency license is not
proposed under Subchapter F of this chapter (relating to Enforcement).
(b)
A branch office providing licensed home health or personal
assistance services must comply with the same rules that apply to the parent
agency and the standards specific to the licensed category(ies) of service(s).
(c)
A branch office providing licensed and certified home health
services must comply with the standards for certified agencies in §97.402
of this title (relating to Standards Specific to Licensed and Certified Home
Health Services).
(d)
A branch office must establish a service area within the
parent agency's service area.
(1)
A branch office must provide services only within its established
service area.
(2)
The branch office must maintain adequate staff to provide
services and to supervise the provision of services within the service area.
(3)
A branch office may expand its service area at any time
during the licensure period.
(A)
Unless exempted under subparagraph (B) of the paragraph,
to expand its service area, a branch office must submit to the Texas Department
of Human Services (DHS) a written notice 30 days prior to the expansion which
includes:
(i)
revised boundaries of the branch office's original service
area;
(ii)
the effective date of the expansion; and
(iii)
an updated list of management and supervisory personnel
(including names), if changes are made.
(B)
An agency will be exempted from the 30-day written notice
requirement under subparagraph (A) of this paragraph if DHS determines an
emergency exists that would adversely impact client health and safety. An
agency must notify DHS immediately of a possible emergency. DHS will determine
if an exemption will be granted.
(4)
A branch office may reduce its service area at any time
during the licensure period by sending DHS written notification of the reduction,
revised boundaries of the branch office's original service area, and the effective
date of the reduction.
(e)
A parent agency and a branch office providing home health
or personal assistance services must meet the following requirements.
(1)
On-site supervision of the branch office must be conducted
at least monthly by the parent agency administrator, administrator's designee,
or supervising nurse or designee. More frequent supervision may be required
considering the size of the service area and the scope of services provided
by the parent agency. The supervisory visits must be documented and include
the date of the visit, the content of the consultation, the individuals in
attendance, and the recommendations of the staff.
(2)
The original active clinical record must be kept at the
branch office.
(3)
The parent agency must approve all branch office policies
and procedures. Such approval must be documented and filed in the parent and
branch offices.
(f)
DHS will issue or renew a branch office license for applicants
who meet the requirements of this section.
(1)
Issuance or renewal of a branch office license is contingent
upon compliance with the statute and this chapter by the parent agency and
branch office.
(2)
DHS may take enforcement action against a parent agency
license for a branch office's failure to comply with the statute or this chapter.
Enforcement action will be in accordance with Subchapter F of this chapter
(relating to Enforcement).
(3)
Revocation, suspension, denial, or surrender of a parent
agency license will result in the same revocation, suspension, denial, or
surrender of a branch office license for all branch office licenses of the
parent agency.
(g)
A branch office may offer fewer health services or categories
than the parent office but may not offer health services or categories that
are not also offered by the parent agency.
§97.322.Standards for Alternate Delivery Sites.
(a)
A hospice is eligible to apply for an alternate delivery
site license:
(1)
if the agency has successfully completed an initial onsite
survey; or for a hospice agency with a first renewal or subsequent renewal
license, if the agency continues to demonstrate substantial compliance with
the statute and this chapter; and
(2)
if enforcement action against the agency is not proposed
under Subchapter F of this chapter (relating to Enforcement).
(b)
An alternate delivery site providing hospice services must
comply with §97.403 of this title (relating to Standards Specific to
Agencies Licensed to Provide Hospice Services).
(c)
An alternate delivery site must independently meet §97.403(c),
(f) (1), and (i) of this title (relating to Standards Specific to Agencies
Licensed to Provide Hospice Services), and §97.301 of this title (relating
to Client Records).
(d)
An alternate delivery site must be established within the
parent hospice's service area.
(1)
The alternate delivery site must provide services only
within its established service area.
(2)
The alternate delivery site must maintain adequate staff
to provide services and to supervise the provision of services within the
service area.
(3)
An alternate delivery site may expand its service area
at any time during the licensure period.
(A)
Unless exempted under subparagraph (B) of this paragraph,
to expand its service area, an alternate delivery site must submit to the
Texas Department of Human Services (DHS) a written notice 30 days prior to
the expansion which includes:
(i)
revised boundaries of the alternate delivery site's original
service area;
(ii)
the effective date of the expansion; and
(iii)
an updated list of management and supervisory personnel
(including names), if changes are made.
(B)
An agency will be exempted from the 30-day written notice
requirement under subparagraph (A) of this paragraph if DHS determines that
an emergency exists that would impact client health and safety. An agency
must notify DHS immediately of a possible emergency. DHS will determine if
an exemption can be granted.
(4)
An alternate delivery site may reduce its service area
at any time during the licensure period by sending DHS written notification
of the reduction, revised boundaries of the alternate delivery site's original
service area, and the effective date of the reduction.
(e)
A hospice and an alternate delivery site providing hospice
services must meet the following requirements.
(1)
On-site supervision of the alternate delivery site must
be conducted by the parent agency at least monthly. More frequent supervision
may be required considering the size of the service area provided by the parent
agency. The parent agency administrator, administrator's designee, or supervising
nurse or designee must conduct supervisory visits to the alternate delivery
site. The supervisory visits must be documented and include the date of the
visit, the content of the consultation, the individuals in attendance, and
the recommendations of the staff.
(2)
The original active clinical record must be kept at the
alternate delivery site office.
(3)
The parent agency must approve all alternate delivery site
policies and procedures. Such approval must be documented and filed in the
parent and alternate delivery sites.
(f)
DHS will issue to or renew an alternate delivery site license
for applicants who meet the requirements of this section.
(1)
Issuance or renewal of an alternate delivery site office
license is contingent upon compliance with the statute and this chapter by
the parent agency and alternate delivery site.
(2)
DHS may take enforcement action against a parent agency
license for an alternate delivery site's failure to comply with the statute
or this chapter. Enforcement action will be in accordance with Subchapter
F of this chapter (relating to Enforcement).
(3)
Revocation, suspension, denial or surrender of a parent
agency license will result in the same revocation, suspension, denial or surrender
of all alternate delivery site licenses of the parent agency.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102158
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.401 - 97.407
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.401.Standards Specific to Licensed Home Health Services.
(a)
In addition to the standards in Subchapter C of this chapter
(relating to Minimum Standards for All Licensed Home and Community Support
Services Agencies), an agency providing licensed home health services must
also meet the standards of this section.
(b)
The agency must accept a client for home health services
on the basis of a reasonable expectation that the client's medical, nursing,
and social needs can be met adequately in the client's residence. An agency
has made a reasonable expectation that it can meet a client's needs if, at
the time of the agency's acceptance of the client, the client and the agency
have agreed as to what needs the agency would meet; for instance, the agency
and the client could agree that some needs would be met but not necessarily
all needs.
(1)
The agency must start providing licensed home health services
to a client within a reasonable time after acceptance of the client and according
to the agency's policy. The initiation of licensed home health services must
be based on the client's health service needs.
(2)
An initial health assessment must be performed in the client's
residence by the appropriate health care professional prior to or at the time
that licensed home health services are initially provided to the client. The
assessment must determine whether the agency has the ability to provide the
necessary services.
(A)
If a practitioner has not ordered skilled care for a client,
then the appropriate health care professional must prepare a care plan. The
care plan must be developed after consultation with the client and the client's
family and must include services to be rendered, the frequency of visits or
hours of service, identified problems, method of intervention, and projected
date of resolution. The care plan must be reviewed and updated by all appropriate
staff members involved in client care at least annually, or more often as
necessary to meet the needs of the client.
(B)
If a practitioner orders skilled treatment, then the appropriate
health care professional must prepare a plan of care. The plan of care must
be signed and approved by a practitioner in a timely manner. The plan of care
must be developed in conjunction with agency staff and must cover all pertinent
diagnoses, including mental status, types of services and equipment required,
frequency of visits at the time of admission, prognoses, functional limitations,
activities permitted, nutritional requirements, medications and treatments,
any safety measures to protect against injury, and any other appropriate items.
The appropriate health care personnel must perform services as specified in
the plan of care. The plan of care must be revised as necessary, but it must
be reviewed and updated at least every six months.
(c)
Agency staff must provide at least one home health service.
All services must be rendered and supervised by qualified personnel. The appropriate
health professional must be available to supervise as needed, when services
are provided.
(1)
If nursing service is provided, a registered nurse must
be employed by or be under contract with the agency to provide services or
supervision.
(2)
If physical therapy service is provided, a physical therapist
must be employed by or be under contract with the agency to provide services
or supervision.
(3)
If occupational therapy service is provided, an occupational
therapist must be employed by or be under contract with the agency to provide
services or supervision.
(4)
If speech-language pathology services are provided, a speech-language
pathologist must be employed by or be under contract with the agency to provide
services or supervision.
(5)
If audiology services are provided, an audiologist must
be employed by or be under contract with the agency to provide services or
supervision.
(6)
If medical social service is provided, a social worker
with a bachelor's degree in social work from an accredited college or university
must be employed by or be under contract with the agency to provide services
or supervision. When medical social service is provided in an agency with
a home dialysis designation, the social worker must meet the qualifications
in §97.405(q) of this title (relating to Standards Specific to Agencies
Licensed to Provide Home Dialysis Services).
(7)
If nutritional counseling is provided, a dietitian or registered
nurse must be employed by or be under contract with the agency to provide
services or supervision.
(8)
If services are provided by unlicensed personnel, a qualified
person must be employed by or be under contract with the agency to provide
the service and a registered nurse must be employed by or be under contract
with the agency to perform the initial health assessment, prepare the client
care plan, as appropriate, and supervise the unlicensed personnel.
(9)
If respiratory therapy service is provided, a respiratory
therapist must be employed by or be under contract with the agency to provide
services.
(d)
An agency may use a home health aide who meets the qualifications
in §97.701 of this title (relating to Home Health Aides) or other individuals
under the supervision of a registered nurse or physician. This subsection
applies only to an agency providing licensed home health services that implements
a home health aide training and competency evaluation program.
(1)
An agency providing licensed home health services is not
required to utilize home health aides. Unlicensed personnel utilized by an
agency providing licensed home health services must be at least 18 years of
age and must demonstrate competency in the task assigned when competency can
not be determined through education and experience. An unlicensed person who
is under 18 years of age, is a high school graduate or is enrolled in a vocational
educational program, and has demonstrated competency to perform the tasks
assigned by the supervisor, may perform licensed home health services.
(2)
An agency providing licensed home health services that
implements a home health aide training and competency evaluation program must
meet the requirements in §97.701(d)-(f) of this title (relating to Home
Health Aides).
(3)
An agency providing licensed home health services that
implements a home health aide competency evaluation program must comply with §97.701(f)
of this title (relating to Home Health Aides).
(4)
Since the individual's most recent completion of a training
and competency evaluation program or a competency evaluation program, if there
has been a period of 24 consecutive months during which the individual has
not furnished home health services, the individual will not be considered
as having completed a training and competency evaluation program or a competency
evaluation program.
§97.402.Standards Specific to Licensed and Certified Home Health Services.
(a)
In addition to the standards in Subchapter C of this chapter
(relating to Minimum Standards for All Licensed Home and Community Support
Services Agencies), an agency providing licensed and certified home health
services must comply with the requirements of the Social Security Act and
the regulations in Title 42 of the Code of Federal Regulations, Part 484.
Copies of the regulations adopted by reference in this section are indexed
and filed in the Texas Department of Human Services, 701 W. 51st Street, Austin,
Texas 78756, and are available for public inspection during regular working
hours.
(b)
An agency providing licensed and certified home health
services that plans to implement a home health aide training and competency
evaluation program must meet the requirements in §97.701(d)-(f) of this
title (relating to Home Health Aides).
(c)
An agency providing licensed and certified home health
services that plans to implement a competency evaluation program must comply
with §97.701(f) of this title (relating to Home Health Aides).
(d)
An agency providing licensed and certified home health
services may not use an individual as a home health aide unless:
(1)
the individual has met the federal requirements under subsection
(a) of this section;
(2)
the individual qualifies as a home health aide on the basis
of a:
(A)
training and competency evaluation program, and the program
meets the requirements of subsection (b) of this section; or
(B)
competency evaluation program, and the program meets the
requirements of subsection (c) of this section; or
(3)
the individual is a licensed health care provider.
(e)
Since the individual's most recent completion of a training
and competency evaluation program or a competency evaluation program, if there
has been a period of 24 consecutive months during which the individual has
not furnished home health services, the individual will not be considered
as having completed a training and competency evaluation program or a competency
evaluation program.
§97.403.Standards Specific to Agencies Licensed to Provide Hospice Services.
(a)
In addition to complying with the minimum standards in
Subchapter C of this chapter (relating to Minimum Standards for All Home and
Community Support Services Agencies), an agency that is licensed to provide
hospice services, must also comply with the standards of this section. If
licensed and certified to provide hospice services, an agency must also comply
with the requirements of the Social Security Act and the regulations in Title
42, Code of Federal Regulations, Part 418.
(b)
A person who is not licensed to provide hospice services
may not use the word "hospice" in a title or description of a facility, organization,
program, service provider or services or use any other words, letters, abbreviations,
or insignia indicating or implying that the person holds a license to provide
hospice services.
(c)
A hospice must adopt and enforce a written policy relating
to the provision of hospice services in accordance with this section. All
covered services must be available 24 hours a day, seven days a week, during
the last stages of illness, during death, and during bereavement, to the extent
necessary for the palliation and management of terminal illness and related
conditions. Services include, at a minimum:
(1)
nursing;
(2)
medical social services;
(3)
counseling;
(4)
volunteer care;
(5)
bereavement counseling;
(6)
coordination of short-term inpatient care;
(7)
physician services; and
(8)
medications.
(d)
The hospice must have a medical director who:
(1)
is a hospice employee, independent contractor, or volunteer;
(2)
is a doctor of medicine or osteopathy licensed in the State
of Texas; and
(3)
assumes responsibility for the medical component of the
hospice's client care program.
(e)
The hospice must designate an interdisciplinary team or
teams composed of individuals who provide or supervise the care and services
offered by the hospice.
(1)
The interdisciplinary team or teams must include at least
the following individuals who are employees of the hospice:
(A)
a physician;
(B)
a registered nurse;
(C)
a social worker; and
(D)
a counselor.
(2)
The interdisciplinary team must be responsible for:
(A)
participation in the establishment of the plan of care;
(B)
provision and supervision of hospice care and services;
(C)
periodic reviews and updates of the plan of care for each
client receiving hospice care; and
(D)
establishment of policies governing the day to day provision
of hospice care and services.
(3)
If the hospice has more than one interdisciplinary team,
the hospice must designate in advance the team it chooses to execute the functions
described in paragraph (2)(D) of this subsection.
(4)
The hospice must designate a registered nurse to coordinate
the implementation of the plan of care for each client.
(f)
Subject to subsections (m ) and (r) of this section, the
hospice may arrange for another individual or entity to furnish services to
the hospice clients. If services are provided under arrangement, the hospice
must meet the following standards.
(1)
The hospice program must assure the continuity of client
and family care in home and outpatient and inpatient settings.
(2)
The hospice must have a contract for the provision of arranged
services. The contract must be signed by authorized representatives of the
hospice as well as the contracting party. The contract must include the following:
(A)
identification of the services to be provided;
(B)
a stipulation that services may be provided only with the
express authorization of the hospice;
(C)
the manner in which the contracted services are coordinated,
supervised, and evaluated by the hospice;
(D)
the delineation of the role(s) of the hospice and the contractor
in the admission process, client and family health assessment, and the interdisciplinary
team case conferences;
(E)
requirements for documentation that services are furnished
in accordance with the agreement; and
(F)
the qualifications of the personnel providing the services.
(3)
The hospice must retain professional management responsibility
for arranged services and ensure that they are furnished in a safe and effective
manner by persons meeting the qualifications under this chapter, and in accordance
with the client's plan of care and the other requirements of this subsection.
(4)
The hospice must retain responsibility for payment for
services.
(5)
The hospice must ensure that inpatient care is furnished
only in a licensed facility which meets the requirements of subsection (w)
of this section, and the hospice's arrangement for inpatient care must be
described in a contract and must meet the requirements of paragraph (2) of
this subsection. The contract, at minimum, must meet the following requirements:
(A)
that the hospice furnishes to the inpatient provider a
copy of the client's plan of care and specifies the inpatient services to
be furnished;
(B)
that the inpatient provider has established policies consistent
with those of the hospice and agrees to abide by the client care protocols
established by the hospice for its clients;
(C)
that the medical record includes a record of all inpatient
services and events, and that a copy of the discharge summary and, if requested,
a copy of the medical record are provided to the hospice;
(D)
the party responsible for implementation of the provisions
of the contract; and
(E)
that the hospice retains responsibility for appropriate
hospice care training (to include palliative and end of life issues) of the
personnel who provide the care under the agreement.
(g)
Prior to the start of care, the hospice physician or registered
nurse must make an initial health assessment visit to determine the immediate
care and support needs of the client.
(1)
The hospice physician or registered nurse must contact
the client or client's representative other within 24 hours of receiving the
physician's referral for hospice care to schedule an appointment for the initial
health assessment.
(2)
The initial health assessment visit must be held within
48 hours after the hospice's receipt of the physician's referral for hospice
care, unless ordered otherwise.
(3)
After the initial health assessment is completed, services
approved by the physician may be rendered.
(h)
The hospice must perform and make available to each client
admitted for hospice services a client-specific comprehensive health assessment
that identifies the client's need for hospice care and the client's need for
medical, nursing, social, emotional, and spiritual care which includes, but
is not limited to, the palliation and management of the terminal illness and
related conditions and support services for clients and their families.
(1)
The hospice must complete the comprehensive health assessment
in a timely manner consistent with the client's immediate needs, but no later
than seven calendar days after the start of hospice care.
(2)
The comprehensive health assessment must include:
(A)
input from the appropriate interdisciplinary team member(s)
and an assessment of:
(i)
each client's physical condition, including functional
ability and nutritional status;
(ii)
each client's pain and other symptoms and the management
of discomfort and symptom relief;
(iii)
the client's and the client's family's social and emotional
well-being;
(iv)
the client's spiritual orientation and needs;
(v)
the survivor risk factors to be considered in developing
the bereavement care plan; and
(vi)
any other information necessary to develop an effective,
interdisciplinary plan of care;
(B)
a review, repeated as necessary, of the client's medication
list. The medication list must include all prescription and over-the-counter
drugs to assure that all drugs are indicated and to identify any potential
problems including, but not limited to:
(i)
ineffective drug therapy;
(ii)
significant side effects;
(iii)
significant drug interactions;
(iv)
significant drug or food interactions;
(v)
duplicate drug therapy; and
(vi)
noncompliance with drug therapy; and
(C)
a system of measures that captures significant outcomes
that are essential to optimal hospice care, that are used in the care planning
and coordination of services, and that are an essential part of the hospice's
quality assessment and performance improvement program. The measures include,
but are not limited to:
(i)
pain;
(ii)
nutritional status;
(iii)
continence;
(iv)
respiratory comfort;
(v)
infections;
(vi)
skin integrity;
(vii)
level of consciousness;
(viii)
anxiety;
(ix)
depression;
(x)
client emotional well being and satisfaction, including
anxiety and depression;
(xi)
spiritual well being;
(xii)
social well being;
(xiii)
family knowledge and understanding; and
(xiv)
client and family satisfaction.
(3)
The comprehensive health assessment must be updated and
revised:
(A)
as frequently as the condition of the client requires,
as determined by:
(i)
changes in the client's physical, social, emotional or
spiritual status;
(ii)
family environment; or
(iii)
suboptimal response to care, treatments or therapies;
and
(B)
within 24 hours of the client's return home from an inpatient
stay.
(i)
A written plan of care must be established and maintained
for each client admitted to the hospice program, and the care provided to
a client must be in accordance with the plan. The plan of care must specify
the care and services necessary to meet the client-specific needs identified
in the comprehensive health assessment described in subsection (h) of this
section, include all client care orders, reflect planned interventions for
problems identified, and ensure that care and services are appropriate to
the severity level of each client's and the client's family's specific needs.
(1)
The plan must be established by the attending physician,
the medical director or physician designee, and interdisciplinary team prior
to providing care.
(2)
The plan must be reviewed and updated as necessary, at
intervals specified in the plan, by the attending physician, the medical director
or physician designee and interdisciplinary team. These reviews must be documented.
An updated plan must include information from the client's comprehensive health
assessment and information concerning the client's progress toward outcomes
specified in the plan.
(3)
The plan must include:
(A)
a comprehensive health assessment of the client's needs
and identification of the services including the management of pain and symptom
relief. The plan must state in detail the scope and frequency of services
needed to meet the client's and family's needs;
(B)
interventions to facilitate the management of pain and
symptoms;
(C)
frequency and mix of services necessary to meet the client
and family specific needs identified in the comprehensive health assessment;
(D)
measurable outcomes that the hospice anticipates will occur
as a result of implementing and coordinating the plan of care;
(E)
drugs and treatments necessary to meet the needs of the
patient as identified in the health assessment;
(F)
medical supplies and appliances necessary to meet the needs
of the client identified in the health assessment; and
(G)
client and family understanding, agreement, and involvement
with the plan as desired.
(j)
The interdisciplinary team may reassess the client for
an appropriate level of care, as long as the reassessment does not reduce
core services.
(k)
The hospice must inform the client of the availability
of short term inpatient care for pain control, management, and respite purposes
and the names of the facilities with which the agency has a contract agreement.
(l)
The hospice must document reasonable efforts to arrange
for visits of clergy and other members of spiritual and religious organizations
in the community to clients who request such visits and must advise all clients
of this opportunity.
(m)
The hospice must ensure that substantially all the core
services described in subsections (n)-(q) of this section are routinely provided
directly by hospice employees. The hospice may use contracted staff if necessary
to supplement its employees in order to meet the needs of clients during periods
of peak client loads or under extraordinary circumstances. If contracting
is used, the hospice must maintain professional, financial, and administrative
responsibility for the services and assure that the qualifications of staff
and services provided meet the requirements specified in subsections (n)-(q)
of this section.
(n)
The hospice must provide nursing care and services by or
under the supervision of a registered nurse.
(1)
Nursing services must be directed and staffed to assure
that the nursing needs of the clients are met.
(2)
Client care responsibilities of nursing personnel must
be specified.
(3)
Services must be provided in accordance with recognized
standards of practice.
(o)
Medical social services must be provided by a social worker
with a bachelor's degree in social work from an accredited college or university
and must be under the direction of a physician.
(p)
In addition to palliation and management of terminal illness
and related conditions, hospice physicians, including physician member(s)
of the interdisciplinary team, must meet the general medical needs of the
clients to the extent that these needs are not met by the attending physician.
The hospice physician may meet these requirements either by directly providing
the services or through coordination with the attending physician. If the
attending physician is unavailable, the hospice physician is responsible for
the care of the client.
(q)
Counseling services must be available to both the client
and the family. Counseling includes dietary, spiritual, and any other counseling
services for the client and family provided while the client is enrolled in
the hospice program as well as bereavement counseling provided after the client's
death.
(1)
Bereavement counseling service must be available to the
family.
(A)
There must be an organized program for the provision of
bereavement services under the supervision of the interdisciplinary team,
a social worker, a mental health professional, a counselor, or other person
with documented evidence of training and experience in dealing with bereavement
and structured training in bereavement counseling. Persons providing bereavement
counseling must have documented evidence of training in personnel folders.
(B)
The plan of care for these services must reflect family
needs, as well as a clear delineation of services to be provided and the frequency
of service delivery. Services must be provided up to one year following the
death of the client.
(2)
Dietary counseling must be planned by a registered or licensed
dietitian, a person who is eligible for registration by the American Dietetic
Association, or an individual who has documented equivalency in education
or training. Dietary counseling must meet specific client needs as described
in the client's plan of care. Although a dietitian need not be a full-time
employee, there must be a record of this individual's credentials on file
in the hospice. Dietary counseling must be supervised by a registered or licensed
dietitian or a registered nurse.
(3)
Spiritual counseling must include notice to clients as
to the availability of clergy as required under subsection (l) of this section.
Spiritual counseling may be conducted by clergy or other members of a spiritual
and religious organization of the client's choice.
(4)
Counseling may be provided by other members of the interdisciplinary
team as well as by other professionals qualified by license or education to
perform the type of counseling provided as determined by the hospice. Counseling,
other than bereavement, dietary, or spiritual must be provided by persons
qualified by license or education to perform the type of counseling to be
provided in accordance with the client's plan of care. The counseling requirements
do not preclude other members of the interdisciplinary team or other professionals
from serving in the capacity of counselor. Nonprofessional volunteers may
be used for listening and social interaction with clients.
(r)
The hospice must ensure that the services described in
subsections (s)-(v) of this section are provided directly by hospice employees
or under arrangements made by the hospice as specified in subsection (f) of
this section. The hospice must maintain a system of communication and integration
of services, whether provided directly or under arrangement, that ensures
the identification of client needs and the ongoing liaison of all disciplines
providing care.
(s)
Physical therapy services, occupational therapy services,
and speech-language pathology services must be available, and when provided,
must be offered in a manner consistent with accepted standards of practice.
(t)
Home health aide and homemaker services must be available
and adequate in frequency to meet the needs of the clients. A home health
aide must meet the training and competency evaluation requirements or the
competency evaluation requirements as specified in §97.701(d)-(f) of
this title (relating to Home Health Aides).
(1)
A registered nurse must visit the residence site no less
frequently than every two weeks when aide services are being provided, and
the visit must include an assessment of the aide services. The aide need not
be present at each supervisory visit.
(2)
Written instructions for client care must be prepared by
a registered nurse.
(u)
Medical supplies and appliances, including medications,
must be provided as needed for the palliation and management of the terminal
illness and related conditions.
(1)
All medications must be administered in accordance with
accepted standards of practice.
(2)
The hospice must have and enforce a policy for the disposal
of controlled medications maintained in the client's residence when those
medications are no longer needed by the client.
(3)
Medications must be administered only by the following
individuals:
(A)
a licensed nurse or physician;
(B)
a permitted home health medication aide;
(C)
the client if his or her attending physician has approved;
or
(D)
another individual acting in accordance with applicable
federal and state laws, or as specified in the rules adopted by the Board
of Nurse Examiners at 22 TAC Chapter 218 (Delegation of Selected Nursing Tasks
by Registered Professional Nurses to Unlicensed Personnel).
(4)
The persons who are authorized to administer medications
must be specified in the client's plan of care.
(v)
Inpatient care must be available for pain control, symptom
management, or respite purposes.
(1)
Inpatient care must be provided by a licensed freestanding
hospice or a hospital or nursing facility that meets the requirements specified
in subsection (w)(1) and (5) of this section.
(2)
A hospice must develop, implement, maintain and evaluate
an ongoing, comprehensive integrated self assessment of the quality and appropriateness
of care provided, including inpatient care, home care, and care provided under
arrangement. The findings must be documented and used by the hospice to correct
identified problems and to revise hospice policies if necessary. Corrective
action must be taken and tracked to ensure that improvements are sustained
over time.
(A)
The hospice's quality assessment and performance improvement
program must include, but not be limited to, the use of objective measures
to demonstrate improved performance with regard to:
(i)
the system of measures that the hospice uses to determine
if individual and aggregate outcomes are achieved compared to a previous time
period;
(ii)
current clinical practice guidelines and professional
practice standards applicable to hospice care;
(iii)
utilization data, as appropriate. This includes data,
such as numbers of staff, types of visits, and inpatient care; and
(iv)
effectiveness and safety of services. This includes services
such as parenteral therapy or infusion controlling devices, if provided; competency
of clinical staff; promptness of service delivery; and appropriateness of
responses to client and family problems.
(B)
The hospice must set priorities for performance improvement,
considering prevalence and severity of identified problems and giving priority
to improvement activities that affect clinical outcomes. The hospice must
immediately correct identified problems that directly or potentially threaten
the care and safety of clients.
(w)
A freestanding hospice that provides inpatient care directly
must comply with the following standards in addition to the standards in subsections
(a)-(v) of this section.
(1)
A freestanding hospice that provides inpatient care directly
must have on-site 24-hour nursing service provided by registered nurses and
licensed vocational nurses.
(A)
The facility must provide 24-hour nursing services which
are sufficient to meet total nursing needs and which are in accordance with
the client's plan of care. Each client must receive treatments, medications,
and diet as prescribed, and must be kept comfortable, clean, well-groomed,
and protected from accident, injury, and infection.
(B)
Each shift must include a registered nurse who provides
and supervises direct client care.
(2)
The hospice must have a written plan, periodically rehearsed
with staff, with procedures to be followed in the event of an internal or
external disaster and for the care of casualties (clients and personnel) arising
from such disasters.
(3)
The hospice must meet all federal, state, and local laws,
regulations, and codes pertaining to health and safety, such as provisions
regulating the following:
(A)
construction, maintenance, and equipment for the hospice;
(B)
sanitation;
(C)
communicable and reportable diseases; and
(D)
post-mortem procedures.
(4)
Except as provided in this subsection, the hospice must
meet National Fire Protection Association 101, Code for Safety to Life from
Fire in Buildings and Structures, 1994 Edition (NFPA 101), Chapter 12 (concerning
new health care occupancies) and Chapter 13 (concerning existing health care
occupancies), published by the National Fire Protection Association (NFPA).
All documents published by the NFPA as referenced in this subsection may be
obtained by writing the National Fire Protection Association, Post Office
Box 9101, Batterymarch Park, Quincy, Massachusetts 02169, or calling 1-800-344-3555.
(A)
The Texas Department of Human Services (DHS) recognizes
the Health Care Financing Administration (HCFA) waiver of specific provisions
of the NFPA 101 required by this paragraph for a certified hospice for as
long as HCFA honors the waiver, if the waiver would not adversely affect the
health and safety of the clients and rigid application of specific provisions
of the NFPA 101 would result in unreasonable hardship for the hospice. DHS
may waive specific provisions of the NFPA 101 for a licensed hospice, if the
waiver would not adversely affect the health and safety of the clients; and
rigid application of specific provisions of the NFPA 101 would result in unreasonable
hardship for the hospice.
(B)
Any existing facility of two or more stories that is not
of fire-resistive construction and is participating on the basis of a waiver
of construction type or height, may not house blind, nonambulatory, or physically
disabled clients above the street-level floor unless the facility is one of
the following construction types (as defined in the NFPA 101)
(i)
Type II (1,1,1)-protected noncombustible;
(ii)
fully-sprinklered Type II (0,0,0)-noncombustible;
(iii)
fully-sprinklered Type III (2,1,1)-protected ordinary;
(iv)
fully-sprinklered Type V (1,1,1)-protected wood frame;
or
(v)
achieves a passing score on the Fire Safety Evaluation
System (FSES) for Health Care Occupancies, National Fire Codes, Volume 10,
NFPA 101A, Guide on Alternative Approaches to Life Safety, Chapter 3, 1995
Edition published by the NFPA.
(5)
The hospice must be designed and equipped for the comfort
and privacy of each client and family member. The hospice must provide:
(A)
physical space for private client and family visiting;
(B)
accommodations for family members to remain with the client
throughout the night;
(C)
accommodations for family privacy after a client's death;
(D)
decor that is homelike in design and function; and
(E)
accommodations where clients are permitted to receive visitors
at any hour, including small children.
(6)
Client rooms must be designed and equipped for adequate
nursing care and the comfort and privacy of clients. Each client's room must:
(A)
be equipped with or conveniently located near toilet and
bathing facilities;
(B)
be at or above grade level;
(C)
contain a suitable bed for each client and other appropriate
furniture;
(D)
have closet space that provides security and privacy for
clothing and personal belongings;
(E)
contain no more than four beds;
(F)
measure at least 100 square feet for a single room or 80
square feet for each client for a multiclient room; and
(G)
be equipped with a device for calling the staff member
on duty.
(7)
For an existing building, DHS recognizes the HCFA waiver
for the space and occupancy requirements of paragraph (6)(E) and (F) of this
subsection for a certified hospice for as long as HCFA honors the waiver,
if DHS finds that the requirements would result in unreasonable hardship on
the hospice if strictly enforced, and the waiver serves the particular needs
of the clients and does not adversely affect their health and safety. For
an existing building, DHS may waive the space and occupancy requirements of
paragraph (6)(E) and (F) of this subsection for a licensed hospice for as
long as it is considered appropriate, if it finds that the requirements would
result in unreasonable hardship on the hospice if strictly enforced and the
waiver serves the particular needs of the clients and does not adversely affect
their health and safety.
(8)
The hospice must provide bathroom facilities. The bathroom
facilities must include the following:
(A)
an adequate supply of hot water at all times for client
use; and
(B)
plumbing fixtures with control valves that automatically
regulate the temperature of the hot water used by clients.
(9)
The hospice must have available at all times a quantity
of linen essential for the proper care and comfort of clients. Linens must
be handled, stored, processed, and transported in such a manner as to prevent
the spread of infection.
(10)
The hospice must make provisions for isolating clients
with infectious diseases.
(11)
The hospice must provide and supervise meal service and
menu planning. The hospice must:
(A)
serve at least three meals or their equivalent each day
at regular times, with not more than 14 hours between a substantial evening
meal and breakfast;
(B)
procure, store, prepare, distribute, and serve all food
under sanitary conditions;
(C)
have a staff member trained or experienced in food management
or nutrition if the staff member responsible for dietary services is not a
dietitian.
(i)
The person must:
(I)
be a graduate of a dietetic technician or dietetic assistant
training program, correspondence or classroom, approved by the American Dietetic
Association; or
(II)
be a graduate of a state-approved course that provided
90 or more hours of classroom instruction in food service supervision and
must have experience as a supervisor in a health care institution with consultation
from a dietitian; or
(III)
have training and experience in food service supervision
and management in a military service equivalent in content to the program
in this paragraph.
(ii)
The staff member is responsible for:
(I)
planning menus that meet the nutritional needs of each
client. The menus must follow the orders of the client's physician and, to
the extent medically possible, follow the recommended dietary allowances of
the Food and Nutrition Board of the National Research Council, National Academy
of Sciences (Recommended Dietary Allowances, 10th ed., 1989, available from
the Printing and Publications Office, National Academy of Sciences, Washington,
D.C. 20418). The menus must be approved by a licensed dietitian. The hospice
must use written guidelines for substitutions that are approved by the licensed
dietitian; and
(II)
supervising the meal preparation and meal service that
is conducted to ensure that the menu plan is followed; and
(D)
have the menus for those clients who require medically
prescribed special diets. The menus must be planned by a dietitian who monitors
the preparation and serving of meals to ensure that the client accepts the
special diet.
(12)
The hospice must provide appropriate methods and procedures
for dispensing and administering medications. Whether medications are obtained
from community or institutional pharmacists or stocked by the facility, the
facility must be responsible for medications for its clients, insofar as they
are covered under the program, and for ensuring that pharmaceutical services
are provided in accordance with accepted professional principles and appropriate
federal and state laws.
(A)
The hospice must employ a licensed pharmacist or have a
formal agreement with a licensed pharmacist to advise the hospice on ordering,
storage, administration, disposal, and recordkeeping of medications.
(B)
A physician must order all medications for the client.
(C)
If the medication order is verbal, the physician must give
it only to a licensed nurse, pharmacist, or another physician.
(D)
If the medication order is verbal, the individual receiving
the order must record and sign it immediately and have the prescribing physician
sign it in a manner consistent with good medical practice.
(E)
Medications must be administered only by one of the following
individuals:
(i)
a licensed nurse or physician;
(ii)
a permitted home health medication aide or an employee
as specified in the rules adopted by the Board of Nurse Examiners at 22 TAC
Chapter 218 (Delegation of Selected Nursing Tasks by Registered Professional
Nurses to Unlicensed Personnel); or
(iii)
the client if his or her attending physician has approved.
(F)
The pharmaceutical service must have procedures for control
and accountability of all medications throughout the facility. Medications
must be dispensed in compliance with federal and state laws. Records of receipt
and disposition of all controlled medications must be maintained in sufficient
detail to enable an accurate reconciliation. The pharmacist must determine
that medication records are in order and that an account of all controlled
medications is maintained and reconciled.
(G)
The labeling of medications must be based on currently
accepted professional principles, and must include the appropriate accessory
and cautionary instructions, as well as the expiration date when applicable.
(H)
In accordance with state and federal laws, all medications
must be stored in locked compartments under proper temperature controls and
only authorized personnel must have access to the keys. Separately locked
compartments must be provided for storage of controlled medications listed
in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act
of 1970, 21 United States Code, §801 et seq and other medications that
are subject to abuse, except under single-unit package medication distribution
systems in which the quantity stored is minimal and a missing dose is readily
detected. An emergency medication kit must be kept readily available.
(I)
Controlled medications no longer needed by the client must
be disposed of in compliance with state requirements. The pharmacist and registered
nurse must dispose of medications and prepare a record of the disposal.
§97.404.Standards Specific to Agencies Licensed to Provide Personal Assistance Services.
(a)
In addition to meeting the standards in Subchapter C of
this chapter (relating to Minimum Standards for All Home and Community Support
Services Agencies), an agency holding a license with the category of personal
assistance services must meet the standards of this section.
(b)
Personal assistance services as defined in §97.2 of
this title (relating to Definitions) may be performed by an unlicensed person
who is at least 18 years of age and has demonstrated competency, when competency
cannot be determined through education and experience, to perform the tasks
assigned by the supervisor. An unlicensed person who is under 18 years of
age, is a high school graduate or is enrolled in a vocational educational
program, and has demonstrated competency to perform the tasks assigned by
the supervisor, may perform personal assistance services.
(c)
The following tasks may be performed under a personal assistance
services category:
(1)
personal care including feeding, preparing meals, transferring,
toileting, ambulation and exercise, grooming, bathing, dressing, routine care
of hair and skin, and assistance with medications that are normally self administered;
(2)
health-related tasks that may be delegated by a registered
nurse (RN) in accordance with the agency's written policy adopted, implemented
and enforced to ensure compliance with the rules of the Board of Nurse Examiners
for the State of Texas adopted at 22 TAC §§218.1-218.11 (Delegation
of Selected Nursing Tasks by Registered Professional Nurses to Unlicensed
Personnel) except for nursing tasks that may not be delegated and nursing
tasks that may not be routinely delegated;
(3)
health-related tasks that are not the practice of professional
nursing under the memorandum of understanding between the Texas Department
of Human Services (DHS) and the Board of Nurse Examiners; and
(4)
health-related tasks that are delegated by a physician
under the Occupations Code, Chapter 157.
(d)
The agency must ensure that when developing its operational
policies, that the policies are considerate of principles of individual and
family choice and control, functional need, and accessible and flexible services.
(e)
In addition to the client record requirements in §97.301(a)(9)
of this title (relating to Client Records), the client file must include the
following:
(1)
documentation of determination of services based on an
on-site visit by the supervisor where services will be primarily delivered
and records of supervisory visits, if applicable;
(2)
individualized service plan developed, agreed upon, and
signed by the client or family and the agency. The individualized service
plan must include, but not be limited to the following:
(A)
types of services, supplies, and equipment to be provided;
(B)
locations of services;
(C)
frequency and duration of services;
(D)
planned date of service initiation;
(E)
charges for services rendered if the charges will be paid
in full or in part by the client or significant other(s), or on request; and
(F)
plan of supervision;
(3)
documentation that the services have been provided according
to the individualized service plan;
(f)
In addition to the written policies required by §97.245
of this title (relating to Staffing Policies) the agency must adopt and enforce
a written policy addressing the supervision of personnel with input from the
client or family on the frequency of supervision.
(1)
Supervision of personnel must be in accordance with the
agency's policies and applicable state laws and rules, including 22 TAC, §§218.1-218.11,
concerning the delegation of selected nursing tasks by registered professional
nurses to unlicensed personnel adopted by the Board of Nurse Examiners.
(2)
A supervisor must be a licensed nurse or have completed
two years of full-time study at an accredited college or university. An individual
with a high school diploma or general equivalence diploma (GED) may substitute
one year of full-time employment in a supervisory capacity in a health care
facility, agency, or community-based agency for each required year of college.
(3)
The client in a client managed attendant care program funded
by DHS or Texas Rehabilitation Commission is not required to meet the standard
in paragraph (2) of this subsection.
(g)
Tube feedings and medication administration through a permanently
placed gastrostomy tube (g-tube) in accordance with subsection (c)(3) of this
section may be performed by an unlicensed person only after successful completion
of the training and competency program and procedures described in paragraphs
(1)-(5) of this subsection.
(1)
The training and competency program for the performance
of g-tube feedings by an unlicensed person must be taught by an RN, physician,
physician assistant (PA), or qualified trainer. A qualified trainer must:
(A)
have successfully completed the training and competency
program described in paragraphs (2) and (3) of this subsection taught by an
RN, physician, or PA;
(B)
have demonstrated upon return demonstration to an RN, physician
or PA the performance of the task and the ability to teach the task; and
(C)
have been deemed competent by an RN, physician, or PA to
train unlicensed personnel in these procedures. Documentation of competency
to perform, train and teach must be maintained in the employee's or contractor's
file. Competency must be evaluated and documented by an RN, physician or PA
annually.
(2)
The minimum training program must include:
(A)
a description of the g-tube placement, including its purpose;
(B)
infection control procedures and universal precautions
to be utilized when performing g-tube feedings or medication administration
through a g-tube;
(C)
a description of conditions which must be reported to the
client or the primary care giver, or in the absence of the primary care giver,
to the agency administrator, supervisor, or the client's physician. The description
of conditions must include a plan to be effected if the g-tube comes out or
is not positioned correctly to ensure medical attention is provided within
one hour;
(D)
review of a written procedure for g-tube feeding or medication
administration through a g-tube. The written procedure must be equivalent
to current acceptable nursing standards of practice, including addressing
the crushing of medications;
(E)
conditions under which g-tube feeding or medication administration
must not be performed; and
(F)
demonstration of a g-tube feeding and medication administration
to a client. If the trainee will become a qualified trainer, the demonstration
must be done by the RN, PA, or physician. If the trainee will not become a
qualified trainer, the demonstration may be done by an RN, PA, physician,
or qualified trainer.
(3)
The minimum competency evaluation must be documented and
maintained in the employee's file and must include:
(A)
a score of 100% on a written multiple choice test that
consists of situational questions to include the criteria in paragraph (2)(A)-(E)
of this subsection and evaluate the trainee's judgment and understanding of
the essential skills, risks, and possible complications of a g-tube feeding
or medication administration through a g-tube;
(B)
a skills checklist demonstrating that the trainee has successfully
completed the necessary skills for a g-tube feeding and medication administration
via g-tube, and if the trainee will become a qualified trainer, the skills
checklist must also demonstrate the ability to teach another person to perform
the task. The skills checklist must be completed by an RN, physician, or PA
if the trainee will become a qualified trainer. The skills checklist for a
trainee who will not become a qualified trainer may be completed by an RN,
physician, PA, or qualified trainer; and
(C)
documentation of an accurate demonstration of the g-tube
feeding and medication administration performed by the trainee as required
by paragraph (2)(F) of this subsection. If the trainee will become a qualified
trainer, documentation of competency to teach this task must be maintained
in the file of the qualified trainer. The person responsible for the training
of the trainee must document the successful demonstration of the g-tube feeding
and medication administration via g-tube by the trainee and the trainee's
competency to perform this task in the trainee's file.
(4)
The client or primary care giver must provide information
on the client's g-tube feeding or medication administration to the agency
supervisor. If the client is not capable of directing his or her own care,
the client's primary care giver must be present to instruct and orient the
supervisor regarding the client's g-tube feeding and medication regime. A
copy of the current regime including unique conditions specific to the client
must be placed in the client's file by the agency supervisor and provided
to the respite care giver. The respite care giver must be oriented by the
client, the client's primary care giver, or the agency supervisor. The supervisor
of the delivery of these services must have successfully completed a training
and competency program outlined in paragraphs (2) and (3) of this subsection
or be a qualified trainer.
(5)
Legend medications that are to be administered must be
in a legally labeled container from a pharmacy that contains the name of the
client. Instructions for dosages according to weight or age for over the counter
drugs commonly given the client must be furnished by the primary care giver
to the respite care giver performing the tube feeding or medication administration.
§97.405.Standards Specific to Agencies Licensed to Provide Home Dialysis Services.
(a)
License designation. An agency may not provide peritoneal
dialysis or hemodialysis services in a client's residence, independent living
environment, or other appropriate location unless the agency holds a license
to provide licensed home health or licensed and certified home health services
and designated to provide home dialysis services. In order to receive a home
dialysis designation, the agency must meet the licensing standards specified
in this section and the standards for home health services in accordance with
Subchapter C of this title (relating to Minimum Standards for All Home and
Community Support Services Agencies) and §97.401 of this title (relating
to Standards Specific to Licensed Home Health Services) except for §97.401(b)(2)(A)
and (B) of this title (relating to Minimum Standards for All Home and Community
Support Services Agencies). If there is a conflict between the standards specified
in this section and those specified in Subchapter C of this title (relating
to Minimum Standards for All Home and Community Support Services Agencies) §97.401
of this title (relating to Standards Specific to Licensed Home Health Services),
the standards specified in this section will apply to the home dialysis services.
(b)
Governing body. An agency must have a governing body. The
governing body must appoint a medical director and the physicians who are
on the agency's medical staff. The governing body must annually approve the
medical staff policies and procedures. The governing body on a biannual basis
must review and consider for approval continuing privileges of the agency's
medical staff. The minutes from the governing body of the agency must be on
file in the agency office.
(c)
Qualifications and responsibilities of the medical director.
(1)
Qualifications. The medical director must be a physician
licensed in the State of Texas who:
(A)
is eligible for certification or is certified in nephrology
or pediatric nephrology by a professional board; or
(B)
during the five-year period prior to September 1, 1996,
served at least 12 months as director of a dialysis facility or program.
(2)
Responsibilities. The medical director must be responsible
for:
(A)
participating in the selection of a suitable treatment
modality for all clients;
(B)
assuring adequate training of nurses in dialysis techniques;
(C)
assuring adequate monitoring of the client and the dialysis
process; and
(D)
assuring the development and availability of a client care
policy and procedures manual and its implementation.
(d)
Personnel files. An agency must have individual personnel
files on all physicians, including the medical director. The file must include
the following:
(1)
a curriculum vitae which documents undergraduate, medical
school, and all pertinent post graduate training; and
(2)
evidence of current licensure, and evidence of current
United States Drug Enforcement Administration certification, Texas Department
of Public Safety registration, and the board eligibility or certification,
or the experience or training described in subsection (c) (1) of this section.
(e)
Provision of services. An agency which provides home staff-
assisted dialysis must, at a minimum, provide nursing services, nutritional
counseling, and medical social service. These services must be provided as
necessary and appropriate at the client's home, by phone, or by a client's
visit to a licensed ESRD facility in accordance with this subsection. The
use of dialysis technicians in home dialysis is prohibited.
(1)
Nursing services.
(A)
A registered nurse (RN), licensed by the State of Texas,
who has at least 18 months experience in hemodialysis obtained within the
last 24 months and has successfully completed the orientation and skills education
described in subsection (f) of this section, must be available whenever dialysis
treatments are in progress in a client's home. The agency administrator must
designate a qualified alternate to this registered nurse.
(B)
Dialysis services must be supervised by an RN who meets
the qualifications for a supervising nurse as set out in §97.244(b)(3)
of this title (relating to Staffing Qualifications).
(C)
Dialysis services must be provided by a qualified licensed
nurse who:
(i)
is licensed as a registered or licensed vocational nurse
by the State of Texas;
(ii)
has at least 18 months experience in hemodialysis obtained
within the last 24 months; and
(iii)
has successfully completed the orientation and skills
education described in subsection (f) of this section.
(2)
Nutritional counseling. A dietitian who meets the qualifications
of this paragraph must be employed by or under contract with the agency to
provide services. A qualified dietitian must meet the definition of dietitian
in §97.2 of this title (relating to Definitions) and have at least one
year of experience in clinical nutrition after obtaining eligibility for registration
by the American Dietetic Association, Commission on Dietetic Registration.
(3)
Medical social services. A social worker who meets the
qualifications established in this paragraph must be employed by or be under
contract with the agency to provide services. A qualified social worker is
a person who:
(A)
is currently licensed under the laws of the State of Texas
as a social worker and has a master's degree in social work from a graduate
school of social work accredited by the Council on Social Work Education;
or
(B)
has served for at least two years as a social worker, one
year of which was in a dialysis facility or program prior to September 1,
1976, and has established a consultative relationship with a licensed master
social worker.
(f)
Orientation, skills education, and evaluation.
(1)
All personnel providing dialysis in the home must receive
orientation and skills education and demonstrate knowledge of the following:
(A)
anatomy and physiology of the normal kidney;
(B)
fluid, electrolyte, and acid-base balance;
(C)
pathophysiology of renal disease;
(D)
acceptable laboratory values for the client with renal
disease;
(E)
theoretical aspects of dialysis;
(F)
vascular access and maintenance of blood flow;
(G)
technical aspects of dialysis;
(H)
peritoneal dialysis catheter, testing for peritoneal membrane
equilibration, and peritoneal dialysis adequacy clearance, if applicable;
(I)
the monitoring of clients during treatment, beginning with
treatment initiation through termination;
(J)
the recognition of dialysis complications, emergency conditions,
and institution of the appropriate corrective action. This includes training
agency personnel in emergency procedures and how to use emergency equipment;
(K)
psychological, social, financial, and physical complications
of chronic dialysis;
(L)
care of the client with chronic renal failure;
(M)
dietary modifications and medications for the uremic client;
(N)
alternative forms of treatment for ESRD;
(O)
the role of renal health team members (physician, nurse,
social worker, and dietitian);
(P)
performance of laboratory tests (hematocrit and blood glucose);
(Q)
the theory of blood products and blood administration;
and
(R)
water treatment to include:
(i)
standards for treatment of water used for dialysis as described
in §3.2.1 (Hemodialysis Systems) and §3.2.2 (Maximum Level of Chemical
Contaminants) of the American National Standard, Hemodialysis Systems, March
1992 Edition, published by the Association for the Advancement of Medical
Instrumentation (AAMI), 3330 Washington Boulevard, Suite 500, Arlington, Virginia
22201. Copies of the standards are indexed and filed in the Texas Department
of Human Services, 701 W. 51st Street, Austin, Texas 78751, and are available
for public inspection during regular working hours;
(ii)
systems and devices;
(iii)
monitoring; and
(iv)
risks to clients of unsafe water.
(2)
The requirements for the orientation and skills education
period for licensed nurses are as follows.
(A)
The agency must develop an 80-hour written orientation
program which includes classroom theory and direct observation of the licensed
nurse performing procedures on a client in the home.
(i)
The orientation program must be provided by a registered
nurse qualified under subsection (e)(1) of this section to supervise the provision
of dialysis services by a licensed nurse.
(ii)
The licensed nurse must pass a written skills examination
or competency evaluation at the conclusion of the orientation program and
prior to the time the licensed nurse delivers independent client care.
(B)
The licensed nurse must complete the required classroom
component as described in paragraph (1)(A)-(E), (K)-(O), (Q) and (R) of this
subsection and satisfactorily demonstrate the skills described in paragraph
(1)(F)-(J) and (P) of this subsection. The orientation program may be waived
by successful completion of the written examination as described in subparagraph
(A)(ii) of this paragraph.
(C)
The supervising nurse or qualified designee must complete
an orientation competency skills checklist for each licensed nurse to reflect
the progression of learned skills, as described in subsection (f) (1) of this
section.
(D)
Prior to the delivery of independent client care, the supervising
nurse or qualified designee must directly supervise the licensed nurse for
a minimum of three dialysis treatments and ensure satisfactory performance.
Dependent upon the trainee's experience and accomplishments on the skills
checklist, additional supervised dialysis treatments may be required.
(E)
Continuing education for employees must be provided quarterly.
(F)
Performance evaluations must be done annually.
(G)
The supervising nurse or qualified designee must provide
direct supervision to the licensed nurse providing dialysis services monthly
or more often if necessary. Direct supervision means that the supervising
nurse is on the premises but not necessarily immediately present where dialysis
services are being provided.
(g)
Hospital transfer procedure. An agency must establish an
effective procedure for the immediate transfer to a local Medicare-certified
hospital for clients requiring emergency medical care. The agency must have
a written transfer agreement with such a hospital, or all physician members
of the agency's medical staff must have admitting privileges at such a hospital.
(h)
Backup dialysis services. An agency which supplies home
staff- assisted dialysis must have an agreement with a licensed end stage
renal disease (ESRD) facility to provide backup outpatient dialysis services.
(i)
Coordination of medical and other information. An agency
must provide for the exchange of medical and other information necessary or
useful in the care and treatment of clients transferred between treating facilities.
This provision must also include the transfer of the client care plan, hepatitis
B status, and long term program.
(j)
Transplant recipient registry program. An agency must ensure
that the names of clients awaiting cadaveric donor transplantation are entered
in a recipient registry program.
(k)
Testing for hepatitis B. An agency must conduct routine
testing of home dialysis clients and agency employees to ensure detection
of hepatitis B in employees and clients.
(1)
An agency must offer hepatitis B vaccination to previously
unvaccinated, susceptible new staff members in accordance with 29 Code of
Federal Regulations, §1910.1030(f)(1)-(2) (Bloodborne Pathogens).
(A)
Staff vaccination records must be maintained in each staff
member's personnel file.
(B)
New staff members providing home dialysis care must be
screened for hepatitis B surface antigen (Hbsag) and the results reviewed
prior to the staff providing client care, unless the new staff member provides
the agency documentation of positive serologic response to hepatitis B vaccine.
(C)
An agency must establish, implement, and enforce a policy
for repeated serologic screening of staff. The repeated serologic screening
must be based on each staff member's HbsAg/antibody to HbsAg (anti-Hbs), and
must be congruent with Appendices i and ii of the National Surveillance of
Dialysis Associated Disease in the United States, 1993, published by the United
States Department of Health and Human Services (USDHHS). This document may
be obtained by writing the Home and Community Support Services Program, Texas
Department of Human Services, 701 W. 51st Street, Austin, Texas 78751 or calling
438-3011 or writing the United States Department of Health and Human Services
at the Public Health Service, Centers for Disease Control and Prevention,
National Center for Infectious Diseases, Hospital Infection Program, Mail
Stop C01, Atlanta, Georgia 30333, or calling 404-639-2318.
(2)
With the advice and consent of a client's nephrologist
or attending physician, an agency must make the hepatitis B vaccine available
to a client who is susceptible to hepatitis B, provided that the client has
coverage or is willing to pay for vaccination.
(A)
An agency must make available to clients literature describing
the risks and benefits of the hepatitis B vaccination.
(B)
Candidates for home dialysis must be screened for HbsAg
within one month before or at the time of admission to the agency.
(C)
Repeated serologic screening must be based on the antigen
or antibody status of the client.
(D)
Monthly screening for HbsAg is required for clients whose
previous test results are negative for HbsAg.
(E)
Screening of HbsAg-positive or anti-HbsAg-positive clients
may be performed on a less frequent basis, provided that the agency's policy
on this subject remains congruent with Appendices i and ii of the National
Surveillance of Dialysis Associated Diseases in the United States, 1993, published
by the USDHHS.
(l)
CPR certification. All direct client care employees must
have current CPR certification.
(m)
Initial admission assessment. Assessment of the client's
residence must be made to ensure a safe physical environment for the performance
of dialysis. The initial admission assessment must be performed by a qualified
registered nurse who meets the qualifications under subsection (e)(1)(A) of
this section.
(n)
Client long-term program. The agency must develop a long-term
program for each client admitted to home dialysis. Criteria must be defined
in writing and must provide guidance to the agency in the selection of clients
suitable for home staff-assisted dialysis and in noting changes in a client's
condition which would require discharge from the program.
(o)
Client history and physical. The agency must ensure that
the history and physical is conducted upon the client's admission or no more
than six months prior to the date of admission, then annually after the date
of admission.
(p)
Physician orders. If home staff-assisted dialysis is selected,
the physician must prepare orders outlining specifics of prescribed treatment.
(1)
If these physician's orders are received verbally, they
must be confirmed in writing within a reasonable time frame. An agency must
adopt and enforce a policy on the time frame for the countersignature of a
physician's verbal orders. Medical orders for home staff-assisted dialysis
must be revised as necessary but reviewed and updated at least every six months.
(2)
The initial orders for home staff-assisted dialysis must
be received prior to the first treatment and must cover all pertinent diagnoses,
including mental status, prognosis, functional limitations, activities permitted,
nutritional requirements, medications and treatments, and any safety measures
to protect against injury. Orders for home staff-assisted dialysis must include
frequency and length of treatment, target weight, type of dialyzer, dialysate,
dialysate flow rate, heparin dosage, and blood flow rate, and must specify
the level of preparation required for the care giver, such as a licensed vocational
nurse or registered nurse.
(q)
Client care plan. The client care plan must be developed
after consultation with the client and the client's family by the interdisciplinary
team. The interdisciplinary team must include the physician, the registered
nurse, the dietitian, and the qualified social worker responsible for planning
the care delivered to the home staff-assisted dialysis patient.
(1)
The initial client care plan must be completed by the interdisciplinary
team within ten calendar days after the first home dialysis treatment.
(2)
The client care plan must implement the medical orders
and must include services to be rendered, such as the identification of problems,
methods of intervention, and the assignment of health care personnel.
(3)
The client care plan must be in writing, be personalized
for the individual, and reflect the ongoing medical, psychological, social,
nutritional, and functional needs of the client, including treatment goals.
(4)
The client care plan must include written evidence of coordination
with other service providers, such as dialysis facilities or transportation
providers, as needed to assure the provision of safe care.
(5)
The client care plan must include written evidence of the
client's or client's legal representative's input and participation, unless
they refuse to participate. At a minimum, the client care plan must demonstrate
that the content was shared with the client or the client's legal representative.
(6)
For non-stabilized clients, where there is a change in
modality, unacceptable laboratory work, uncontrolled weight changes, infections,
or a change in family status, the client care plan must be reviewed at least
monthly by the interdisciplinary team. Evidence of the review of the client
care plan with the client and the interdisciplinary team to evaluate the client's
progress or lack of progress toward the goals of the care plan, and interventions
taken when progress toward stabilization or the goals are not achieved, must
be documented and included in the client record.
(7)
For a stable client, the client care plan must be reviewed
and updated as indicated by any change in the client's medical, nutritional,
or psychosocial condition or at least every six months. The long term program
must be revised as needed and reviewed annually. Evidence of the review of
the client care plan with the client and the interdisciplinary team to evaluate
the client's progress or lack of progress toward the goals of the care plan,
and interventions taken when the goals are not achieved, must be documented
and included in the client record.
(r)
Medication administration. Medications must be administered
only by licensed personnel.
(s)
Client records. In addition to the applicable information
described in §97.301(a)(9) of this title (relating to Client Records),
records of home staff assisted dialysis clients must include the following:
(1)
a medical history and physical;
(2)
clinical progress notes by the physician, qualified licensed
nurse, qualified dietitian, and qualified social worker;
(3)
dialysis treatment records;
(4)
laboratory reports;
(5)
a client care plan;
(6)
a long-term program; and
(7)
documentation of supervisory visits.
(t)
Water treatment.
(1)
Water used for dialysis purposes must be analyzed for chemical
contaminants every six months. Additional chemical analysis must be conducted
if test results exceed the maximum levels of chemical contaminants listed
in §3.2.2 (Maximum Level of Chemical Contaminants) of the American National
Standards for Hemodialysis Systems, March 1992 Edition, published by the AAMI.
Copies of the standards are indexed and filed in the Texas Department of Human
Services, 701 W. 51st Street, Austin, Texas 78751, and are available for public
inspection during regular working hours.
(2)
Water used for dialysis must be treated as necessary to
maintain a continuous water supply that is biologically and chemically compatible
with acceptable dialysis techniques.
(3)
Water used to prepare dialysate must meet the requirements
set forth in §3.2.1 (Hemodialysis Systems) and §3.2.2 (Maximum Level
of Chemical Contaminants), March 1992 Edition, published by the AAMI. Copies
of the standards are indexed and filed in the Texas Department of Human Services,
701 W. 51st Street, Austin, Texas 78751, and are available for public inspection
during regular working hours.
(4)
Records of test results and equipment maintenance must
be maintained at the agency.
(u)
Equipment testing. An agency must adopt and enforce a policy
to describe how the nurse will check the machine for conductivity, temperature,
and Ph prior to treatment, and describe the equipment required for these tests.
The equipment must be available for use prior to each treatment. This policy
must reflect current standards.
(v)
Preventive maintenance for equipment. An agency must develop,
and enforce a written preventive maintenance program to ensure client care
related equipment receives electrical safety inspections, if appropriate,
and maintenance at least annually or more frequently if recommended by the
manufacturer. The preventive maintenance may be provided by agency or contract
staff qualified by training or experience in the maintenance of dialysis equipment.
(1)
All equipment used by a client in home dialysis must be
maintained free of defects which could be a potential hazard to clients, the
client's family or agency personnel.
(A)
Agency staff must be able to identify malfunctioning equipment
and report such equipment to the appropriate agency staff. Malfunctioning
equipment must be immediately removed from use.
(B)
Written evidence of all preventive maintenance and equipment
repairs must be maintained.
(C)
After repairs or alterations are made to any equipment,
the equipment must be thoroughly tested for proper operation before returning
to service.
(D)
An agency must comply with the federal Food, Drug, and
Cosmetic Act, 21 United States Code (USC), §360i(b), concerning reporting
when a medical device as defined in 21 USC, §321(h) has or may have caused
or contributed to the injury or death of an agency client.
(2)
In the event that the water used for dialysis purposes
or home dialysis equipment is found not to meet safe operating parameters,
and corrections can not be effected to ensure safe care promptly, the client
must be transferred to a licensed hospital (if inpatient care is required)
or licensed ESRD facility until such time as the water or equipment is found
to be operating within safe parameters.
(w)
Reuse or reprocessing of medical devices. Reuse or reprocessing
of disposable medical devices, including but not limited to, dialyzers, end-caps,
and blood lines must be in accordance with this subsection.
(1)
An agency's reuse practice must comply with the American
National Standard, Reuse of Hemodialyzers, 1993 Edition, published by the
AAMI. A facility must adopt and enforce a policy for dialyzer reuse criteria
(including any agency-set number of reuses allowed) which is included in client
education materials.
(2)
A transducer protector must be replaced when wetted during
a dialysis treatment and must be used for one treatment only.
(3)
Arterial lines may be reused only when the arterial lines
are labeled to allow for reuse by the manufacturer and the manufacturer-established
protocols for the specific line have been approved by the United States Food
and Drug Administration.
(4)
An agency must consider and address the health and safety
of clients sensitive to disinfectant solution residuals.
(5)
An agency must provide each client and the client's family
or legal representative with information regarding the reuse practices of
the agency, the opportunity to tour the reuse facility used by the agency,
and the opportunity to have questions answered.
(6)
An agency practicing reuse of dialyzers must:
(A)
ensure that dialyzers are reprocessed via automated reprocessing
equipment in a licensed ESRD facility or a centralized reprocessing facility;
(B)
maintain responsibility and accountability for the entire
reuse process;
(C)
adopt and enforce policies to ensure that the transfer
and transport of used and reprocessed dialyzers to and from the client's home
does not increase contamination of the dialyzers, staff, or the environment;
and
(D)
ensure that DHS staff has access to the reprocessing facility
as part of an agency inspection.
(x)
Laboratory services. Provision of laboratory services must
be as follows.
(1)
All laboratory services ordered for the client by a physician
must be performed by a laboratory which meets the Clinical Laboratory Improvement
Amendments of 1988, 42 United States Code, §263a, Certification of Laboratories
(CLIA 1988) and in accordance with a written arrangement or agreement with
the agency. CLIA 1988 applies to all agencies with laboratories that examine
human specimens for the diagnosis, prevention, or treatment of any disease
or impairment of, or the assessment of the health of, human beings.
(2)
Copies of all laboratory reports must be maintained in
the client's medical record.
(3)
Hematocrit and blood glucose tests may be performed at
the client's home in accordance with §97.284 of this title (relating
to Laboratory Services). Results of these tests must be recorded in the client's
medical record and signed by the qualified licensed nurse providing the treatment.
Maintenance, calibration, and quality control studies must be performed according
to the equipment manufacturer's suggestions, and the results must be maintained
at the agency.
(4)
Blood and blood products must only be administered to dialysis
clients in their homes by a licensed nurse or physician.
(y)
Home dialysis supplies. Supplies for home dialysis must
meet the following requirements.
(1)
All drugs, biologicals, and legend medical devices must
be obtained for each client pursuant to a physician's prescription in accordance
with applicable rules of the Texas Board of Pharmacy.
(2)
In conjunction with the client's attending physician, the
agency must ensure that there are sufficient supplies maintained in the client's
home to perform the scheduled dialysis treatments and to provide a reasonable
number of backup items for replacements, if needed, due to breakage, contamination,
or defective products. All dialysis supplies, including medications, must
be delivered directly to the client's home by a vendor of such products. However,
agency personnel may transport prescription items from a vendor's place of
business to the client's home for the client's convenience, so long as the
item is properly labeled with the client's name and direction for use. Agency
personnel may transport medical devices for reuse.
(z)
Emergency procedures. The agency must adopt and enforce
policies and procedures for emergencies addressing fire, natural disaster,
and medical emergencies.
(1)
Procedures must be individualized for each client to include
the appropriate evacuation from the home and emergency telephone numbers.
Emergency telephone numbers must be posted at each client's home and must
include 911 if available, the number of the physician, the ambulance, the
qualified registered nurse on call for home dialysis, and any other phone
number deemed as an emergency number.
(2)
The agency must ensure that the client and the client's
family know the agency's procedures for emergencies.
(3)
The agency must ensure that the client and the client's
family know the procedure for disconnecting the dialysis equipment.
(4)
The agency must ensure that the client and the client's
family know emergency call procedures.
(5)
A working telephone must be available during the dialysis
procedure.
(6)
Depending on the kinds of medications administered, an
agency must have available emergency drugs as specified by the medical director.
(7)
In the event of a medical emergency requiring transport
to a hospital for care, the agency must assure the following:
(A)
the receiving hospital is given advance notice of the client's
arrival;
(B)
the receiving hospital is given a description of the client's
health status; and
(C)
the selection of personnel, vehicle, and equipment are
appropriate to effect a safe transfer.
§97.406.Standards for Agencies Providing Psychoactive Services.
An agency that provides skilled nursing psychoactive treatments must
comply with the requirements of this section.
(1)
An agency must adopt and enforce a written policy relating
to the provision of psychoactive treatments consistent with this section.
(2)
Skilled nursing psychoactive treatments must be under the
direction of a physician. Psychoactive treatments may only be provided by
a physician or a registered nurse.
(3)
A registered nurse providing skilled nursing psychoactive
treatments must have one of the following qualifications:
(A)
a master's degree in psychiatric or mental health nursing;
(B)
a bachelor's degree in nursing with one year of full-time
experience in an active treatment unit in a mental health facility or outpatient
clinic;
(C)
a diploma or associate degree with two years of full-time
experience in an active treatment unit in a mental health facility or outpatient
clinic; or
(D)
for a registered nurse for Medicare certified agencies,
as allowed by the fiscal intermediary for Texas contracting with the United
States Department of Health and Human Services (USDHHS) Health Care Financing
Administration (HCFA).
(4)
An agency must have written documentation that a registered
nurse providing skilled nursing psychoactive treatments is qualified under
paragraph (3) of this subsection.
(5)
The initial health assessment of a client receiving skilled
nursing psychoactive treatments must include:
(A)
mental status including psychological and behavioral status;
(B)
sensory and motor function;
(C)
cranial nerve function;
(D)
language function; and
(E)
any other criteria established by an agency's policy.
§97.407.Standards for Agencies Providing Home Intravenous Therapy.
An agency furnishing intravenous therapy directly or under arrangement
must comply with the following standards of care.
(1)
A physician's order must be written specifically for intravenous
therapy.
(2)
Intravenous therapy must be provided by a licensed nurse.
(3)
To insure that prescribed care is administered safely,
a licensed nurse must have the knowledge and documented competency to interpret
and implement the written order.
(4)
Written policies and procedures regarding the agency's
provision of intravenous therapy must include, but are not limited to, addressing
initiation, medication administration, monitoring, and discontinuation. Responsibilities
of the licensed nurse must be clearly delineated in written policies and procedures.
(5)
A registered nurse must be available 24 hours per day.
(6)
The client and care giver must be assessed for the ability
to safely administer the prescribed intravenous therapy as per agency written
criteria.
(7)
If the client or care giver is willing and able to safely
administer the prescribed intravenous therapy, the agency must offer to teach
the client or care giver such administration. The teaching process is based
on the client and care giver needs and may include written instructions, verbal
explanations, demonstrations, evaluation and documentation of competency,
proficiency in performing therapy, scope of physical activities, and safe
disposal of equipment.
(8)
Actions must be implemented prior to and during all intravenous
therapy to minimize the risk of anaphylaxis or other adverse reactions as
stated in the agency's written policy.
(9)
An ongoing assessment of client and care giver compliance
in performing therapy related procedures must be done at periodic intervals.
(10)
Care coordination must be provided in order to assure
continuity of care.
(11)
The client and care giver must be provided with 24-hour
access to appropriate health care professionals employed by or having a contract
with the agency.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102159
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §97.501, §97.502
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.501.Survey Procedures.
(a)
An on-site survey will determine if the requirements of
the statute and the rules are being met.
(1)
The Texas Department of Human Services (DHS) or its authorized
representative(s) (surveyor) may enter the premises of a license applicant
or license holder at reasonable times during business hours to conduct an
on-site survey incidental to the issuance of a license, and at other times
as it considers necessary to ensure compliance with the statute or the rules
adopted under the statute, an order of the commissioner of human services
(commissioner) or the commissioner's designee, a court order granting injunctive
relief, or other enforcement action. A standard-by-standard evaluation is
required before the first renewal license is issued unless waived in accordance
with §97.13(b)(8) of this title (relating to Change of Ownership).
(2)
At the discretion of DHS, an on-site survey may be conducted
for renewal of a license or issuance of a branch office or alternate delivery
site license.
(3)
If there is a question relating to the accuracy of an agency's
financial records relating to the operation of the agency or the agency's
financial ability to carry out its functions, DHS or its designee may conduct
an extensive review of the records. Any financial review by DHS will be conducted
by an individual who has the financial qualifications to review such records.
(4)
The person in charge of the agency must be present at the
time of a survey by DHS. For the purposes of this section, the person in charge
of the agency is:
(A)
the administrator or designated alternate; or
(B)
the supervising nurse or designated alternate.
(5)
DHS or a representative of DHS is entitled to access to
all books, records, or other documents maintained by or on behalf of the agency
to the extent necessary to ensure compliance with the statute, this chapter,
an order of the commissioner, a court order granting injunctive relief, or
other enforcement action. Failure to grant access will result in immediate
enforcement action. DHS will maintain the confidentiality of agency records
as applicable under federal or state law. Ensuring compliance includes permitting
photocopying by a DHS surveyor or providing photocopies to a DHS surveyor
of any records or other information by or on behalf of DHS as necessary to
determine or verify compliance with the statute or this chapter. Copies of
clinical records supplied by the agency to DHS must be certified copies and
must include a complete copy of all records requested by DHS.
(6)
By applying for or holding a license, the agency consents
to entry and survey of the agency by DHS or a representative of DHS in accordance
with the statute and this chapter.
(b)
Except for the initial survey, a survey conducted by DHS
will be unannounced.
(c)
Except for the investigation of complaints, an agency licensed
by DHS is not subject to additional surveys relating to home health, hospice,
or personal assistance services while the agency maintains deemed accreditation
status for the applicable services from the Joint Commission on Accreditation
of Healthcare Organizations, the Community Health Accreditation Program. An
initial survey after issuance of an initial license will be done by DHS:
(1)
if the agency is not yet accredited; or
(2)
unless waived under §97.13(b)(8) of this title (relating
to Change of Ownership).
(d)
A DHS representative will hold a conference with the person
in charge of the agency before beginning the on-site survey to explain the
nature and scope of the survey. When the survey is completed, the DHS representative
will hold an exit conference with the person in charge of the agency and will
identify any records that were duplicated. Any records that are removed from
an agency will be removed only with the consent of the agency.
(e)
A DHS representative will fully inform the person in charge
of the agency of the preliminary findings of the survey and will give the
person a reasonable opportunity to submit additional facts or other information
to DHS's authorized representative in response to those findings. The response
will be made a part of the record of survey for all purposes and must be received
by DHS within ten calendar days of receipt of the preliminary findings of
the survey by the agency.
(f)
After a survey of an agency, DHS will provide the chief
executive officer of the agency:
(1)
specific and timely written notice of the findings of the
survey including:
(A)
the specific nature of the survey;
(B)
any alleged violations of a specific statute or rule;
(C)
specific nature of any finding regarding an alleged violation
or deficiency;
(D)
if a deficiency is alleged, the severity of the deficiency;
and
(E)
if there are no deficiencies found, a statement indicating
this fact;
(2)
information on the identity, including the signature, of
each department representative conducting, reviewing, or approving the results
of the survey and the date on which the department representative acted on
the matter; and
(3)
if requested by the agency, copies of all documents relating
to the survey maintained by the department or provided by the department to
any other state or federal agency that are not confidential under state law.
(g)
The surveyor will:
(1)
conduct a survey for all categories of services authorized
under the license;
(2)
conduct a minimum of three home visits unless the agency
has only three clients;
(3)
review a minimum of ten client records unless the agency
has had less than ten clients; such review must include a sample of pediatric
clients if pediatric clients are served by the agency;
(4)
obtain a client's signature consenting to the home visit.
A client may refuse a home visit without effect on the level and nature of
care or benefit to the client;
(5)
prepare a statement of deficiencies, if any;
(6)
obtain a plan of correction for deficiencies which is provided
by the agency either on-site or within ten calendar days of the agency's receipt
of the statement of deficiencies and which indicates the date(s) by which
correction(s) will be made;
(7)
obtain the signature of the person in charge of the agency
acknowledging the receipt of the statement of deficiencies and plan of correction
form. The person's signature does not indicate the person's agreement with
deficiencies stated on the form;
(8)
obtain within ten calendar days of the survey written comments,
if any, by the person in charge of the agency. Additional facts, written comments
or other information provided by the agency in response to the findings will
be made a part of the record of the survey for all purposes; and
(9)
inform person in charge of the agency of the agency's right
of reconsideration of any deficiency(ies) cited and of the procedures for
requesting a reconsideration. A reconsideration requested by an agency does
not excuse the agency from submitting a plan of correction required in subsection
(h)(1) of this section.
(h)
The agency must:
(1)
submit an acceptable written plan of correction for each
deficiency no later than ten days from its receipt of a statement of deficiencies.
A plan of correction date must not exceed 45 days from the date the deficiency
was cited; and
(2)
correct each deficiency no later than the plan of correction
date for that deficiency. Failure of an agency to correct each deficiency
by the plan of correction date may result in enforcement action in accordance
with Subchapter F of this chapter (relating to Enforcement).
(i)
If Medicare certification is denied by the Health Care
Financing Administration (HCFA) or the agency withdraws from the Medicare
program, the agency may only operate under the category remaining on the current
license. The effective date of the change will be the date indicated on the
final termination letter issued to the agency by HCFA. This change does not
preclude DHS from taking enforcement action, if appropriate, under Subchapter
F of this chapter (relating to Enforcement).
(j)
If deficiencies are cited and the plan of correction is
not acceptable, DHS will notify the agency in writing and request that the
plan of correction be resubmitted no later than 30 calendar days of the agency's
receipt of DHS's written notice. Upon resubmission of an acceptable plan of
correction, DHS will send written notice to the agency acknowledging same.
(k)
DHS will verify the correction of deficiencies by mail
or by an on-site survey within 90 days of DHS's receipt of an acceptable plan
of correction.
(l)
Acceptance of a plan of correction does not preclude DHS
from taking enforcement action as appropriate under Subchapter F of this chapter
(relating to Enforcement).
(m)
Except as provided by Health and Safety Code, §142.009(h),
(i), and (l) an on-site survey will be conducted within 18 months after a
survey for an initial license. After that time, an on-site survey will be
conducted at least every 36 months.
(n)
If a person is renewing or applying for a license to provide
more than one category of services under the statute or for a branch office
or alternate delivery site license, the required surveys for each of the services
or location(s) the license holder or applicant seeks to provide will be completed
during the same survey visit.
§97.502.Complaint Investigation.
(a)
An agency must provide to each person who receives home
health, hospice, or personal assistance services a written statement that
informs the recipient that a complaint against the agency may be directed
to the Texas Department of Human Services (DHS). The statement must be provided
at the time of admission and must direct the recipient to register complaints
with the Director of the Home and Community Support Services Program, Texas
Department of Human Services (DHS), P.O. Box 149030, Austin, Texas 78714-9030,
toll free 1-800-228-1570.
(b)
A complaint containing allegations that are a violation
of the statute or this chapter will be investigated by DHS.
(c)
A complaint containing allegations that are not a violation
of the statute or this chapter will not be investigated by DHS but will be
referred to law enforcement agencies or other agencies, as appropriate.
(d)
DHS will inform in writing a complainant who identifies
himself by name and address of the following information:
(1)
the receipt of the complaint;
(2)
whether the complainant's allegations allege potential
violations of the statute or this chapter warranting an investigation;
(3)
whether the complaint will be investigated by DHS;
(4)
whether and to whom the complaint will be referred; and
(5)
the findings of the complaint investigation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102160
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §§97.601 - 97.604
The new sections are proposed under the Health and Safety
Code, Chapter 142, which provides the department with the authority to adopt
rules for the licensing and regulation of home and community support services
agencies.
The new sections implement the Health and Safety Code, Chapter 142.001-142.030.
§97.601.License Denial, Suspension or Revocation.
(a)
The Texas Department of Human Services (DHS) may deny,
suspend, suspend on an emergency basis, or revoke a license issued to an applicant
or agency if the applicant or agency:
(1)
fails to comply with any provision of the statute;
(2)
fails to comply with any provision of this chapter;
(3)
has a provider agreement under the Social Security Act,
Title XVIII, which has been terminated by the certifying body, Health Care
Financing Administration, or if the agency withdraws its certification or
its request for certification. An agency providing licensed and certified
home health services that submits a request for a hearing as provided by this
section is governed by the requirements of the statute and the rules relating
to an agency providing licensed only home health services until suspension
or revocation is finally determined by DHS or, if the license is suspended
or revoked, until the last day for seeking review of the DHS order or a later
date fixed by order of the reviewing court;
(4)
commits fraud, misrepresentation, or concealment of a material
fact on any documents required to be submitted to DHS or required to be maintained
by the agency pursuant to this chapter;
(5)
has aided, abetted, or permitted the commission of an illegal
act;
(6)
fails to provide the required application or renewal information;
(7)
fails to comply with an order of the commissioner of human
services or another enforcement procedure under the statute;
(8)
discloses action as described in §97.11(g)(3)(R) and
(S) of this title (relating to Application and Issuance of Initial License)
or §97.12(b)(2)(A) of this title (relating to Issuance and Renewal of
License);
(9)
knowingly employs as the agency administrator or chief
financial officer, an individual who was convicted of a felony or misdemeanor
listed in subsection (b) of this section.
(b)
DHS may suspend or revoke an existing valid license or
disqualify a person from receiving a license because of a person's conviction
of a felony or misdemeanor if the crime directly relates to the duties and
responsibilities of a licensed agency.
(1)
In determining whether a criminal conviction directly relates,
DHS will consider the provisions of Texas Civil Statutes, Article 6252-13c.
(2)
The following felonies and misdemeanors directly relate
because these criminal offenses indicate an inability or a tendency for the
person to be unable to own or operate an agency. These offenses also relate
to the holding of a home health medication aide permit or an entity approved
under Subchapter H of this chapter (relating to Home Health Medication Aides),
to conduct a home health medication aide training program:
(A)
a misdemeanor violation of the statute;
(B)
a conviction relating to deceptive business practices;
(C)
a misdemeanor or felony offense involving moral turpitude;
(D)
the misdemeanor of practicing any health-related profession
without a required license;
(E)
a conviction under any federal or state law relating to
drugs, dangerous drugs or controlled substances;
(F)
an offense under the Texas Penal Code involving a client
or client of a health care facility or agency;
(G)
Texas Penal Code, Chapter 19 concerning criminal homicide;
(H)
Texas Penal Code, Chapter 20 concerning kidnapping and
false imprisonment;
(I)
Texas Penal Code, §21.11 concerning indecency with
a child;
(J)
Texas Penal Code, §22.011 concerning sexual assault;
(K)
Texas Penal Code, §22.02 concerning aggravated assault;
(L)
Texas Penal Code, §22.04 concerning injury to a child,
elderly individual, or disabled individual;
(M)
Texas Penal Code, §22.041 concerning abandoning or
endangering child;
(N)
Texas Penal Code, §22.08 concerning aiding suicide;
(O)
Texas Penal Code, §25.031 concerning agreement to
abduct from custody;
(P)
Texas Penal Code, §25.08 concerning sale or purchase
of a child;
(Q)
Texas Penal Code, §28.02 concerning arson;
(R)
Texas Penal Code, §29.02 concerning robbery;
(S)
Texas Penal Code, §29.03 concerning aggravated robbery;
(T)
a misdemeanor or felony offense under the Texas Penal Code,
as follows:
(i)
Title 5, concerning offenses against the person;
(ii)
Title 7, concerning offenses against property;
(iii)
Title 9, concerning offenses against public order and
decency;
(iv)
Title 10, concerning offenses against public health, safety,
and morals; and
(v)
Title 4, concerning offenses of attempting or conspiring
to commit any of the offenses in subparagraphs (A)-(T) of this paragraph;
and
(vi)
other misdemeanors and felonies which indicate an inability
or tendency for the person to be unable to own or operate an agency, hold
a permit, or receive program approval under Subchapter H of this chapter (relating
to Home Health Medication Aides), if action by DHS will promote the intent
of the statute, this chapter, or Texas Civil Statutes, Article 6252-13c.
(3)
Upon a licensee's felony conviction, felony probation revocation,
revocation of parole, or revocation of mandatory supervision, the license
will be revoked.
(c)
Before the institution of proceedings to revoke or suspend
a license or deny an application for the renewal of a license, DHS will give
the license holder:
(1)
notice by personal service or by registered or certified
mail of the facts or conduct alleged to warrant the proposed action; and
(2)
an opportunity to show compliance with all requirements
of law for the retention of the license by sending the director of DHS's Long
Term Care-Regulatory a written request for an informal reconsideration. The
request must:
(A)
be postmarked within 10 days of the date of DHS's notice
and be received in the state office of the director of DHS's Long Term Care-
Regulatory within 10 days of the date of the postmark; and
(B)
contain specific documentation refuting DHS's allegations.
(d)
If the agency requests an informal reconsideration under
subsection (c)(2) of this subsection, DHS's review will be limited to a review
of documentation submitted by the license holder and information DHS used
as the basis for its proposed action and will not be conducted as an adversary
hearing. DHS will give the license holder a written affirmation or a reversal
of the proposed action, as appropriate.
(e)
If DHS proposes to deny, suspend, or revoke a license,
DHS will notify the agency by certified mail, return receipt requested, or
personal delivery of the reasons for the proposed action and offer the agency
an opportunity for a hearing. If a notice served by mail is returned undeliverable
or DHS is unable to execute personal delivery of the notice, DHS will publish
the notice in a newspaper of general circulation serving the county in which
the agency is located based upon the last address provided by the agency.
Publication of the notice will be for seven consecutive calendar days. An
agency which fails to claim a notice sent by certified mail or refuses to
accept the notice does not make the notice null and void.
(1)
The agency must request a hearing within 15 calendar days
of receipt of the notice. The request must be in accordance with Chapter 79,
Subchapter Q of this title (relating to Formal Hearings). Receipt of the notice
is presumed to occur on the tenth day after the notice is mailed to the last
address known to DHS unless another date is reflected on a United States Postal
Service return receipt.
(2)
A hearing will be conducted pursuant to the Administrative
Procedure Act, Texas Government Code, Chapter 2001, and DHS's formal hearing
procedures in Chapter 79, Subchapter Q of this title (relating to Formal Hearings).
(3)
If the agency does not request a hearing in writing within
15 calendar days of receipt of the notice, the agency is deemed to have waived
the opportunity for a hearing and the proposed action will be taken.
(4)
If the agency fails to appear or be represented at the
scheduled hearing, the agency has waived the right to a hearing and the proposed
action will be taken.
(5)
The denial, suspension, or revocation of a license will
take effect when the deadline for appeal of the denial, suspension, or revocation
passes, unless the agency appeals the enforcement action. If the agency appeals
the enforcement action, the status of the license holder is preserved until
final disposition of the contested matter.
(f)
DHS may suspend or revoke a license to be effective immediately
when the health and safety of persons are threatened. DHS will immediately
give the chief executive officer of the agency adequate notice of the action
taken, the legal grounds for the action, and the procedure governing appeal
of the action. DHS will also notify the agency of the emergency action including
the legal grounds for the action and the procedure governing appeal of the
action by certified mail, return receipt requested, or personal delivery of
the notice and of the date of a hearing, which will be not later than seven
calendar days after the effective date of the suspension or revocation. The
effective date of the emergency action will be stated in the notice. The hearing
will be conducted pursuant to the Administrative Procedure Act, Texas Government
Code, Chapter 2001, and DHS's formal hearing procedures in Chapter 79, Subchapter
Q of this title (relating to Formal Hearings).
(g)
If an agency has had enforcement action taken by DHS against
the agency, the agency, its owner(s), or its affiliate(s) may not apply for
an agency license or make any requests to change categories of license for
one year following the effective date of the enforcement action. For purposes
of this paragraph only, the term "enforcement action" means license revocation,
suspension, emergency suspension, or denial or injunctive action but does
not include administrative penalties or civil penalties. If DHS prevails in
one enforcement action, such as an injunctive action, against the agency but
also proceeds with another enforcement action, such as a revocation, based
on some or all of the same violations, but DHS does not prevail in the second
enforcement action (the agency prevails), the prohibition in this paragraph
does not apply.
(h)
If DHS suspends a license, the suspension will remain in
effect until DHS determines that the reason for suspension no longer exists.
An authorized representative of DHS will conduct a survey of the agency prior
to making a determination.
(1)
During the time of suspension, the suspended license holder
must return the license to DHS.
(2)
If a suspension overlaps a renewal date, the suspended
license holder must comply with the renewal procedures in this chapter; however,
DHS may not renew the license until DHS determines that the reason for suspension
no longer exists.
(3)
If suspension is for more than one year, the suspended
license holder may apply to DHS for cancellation of the suspension only after
one year following the initial date of the suspension.
(i)
If DHS revokes or does not renew a license and the one-year
period described in subsection (h)(3) of this section has passed, a person
may reapply for a license by complying with the requirements and procedures
in this chapter at the time of reapplication. DHS may refuse to issue a license
if the reason for revocation or nonrenewal continues to exist.
(j)
Upon revocation or nonrenewal, a license holder must return
the license to DHS.
§97.602.Administrative Penalties.
(a)
General. The Texas Department of Human Services (DHS) may
assess an administrative penalty against a person who violates the statute
or this chapter. A person under this section includes a licensed agency.
(b)
Assessment of a penalty.
(1)
Notwithstanding any other provision of the statute, DHS
may not assess an administrative penalty against an agency:
(A)
that provides only long-term care Medicaid waiver services
that are publicly funded and is certified and monitored by a state agency
that has developed standards that ensure the health and safety of service
recipients; or
(B)
that provides home health, hospice, or personal assistance
services only to persons enrolled in a program that is funded in whole or
in part by the Texas Department of Mental Health and Mental Retardation (TXMHMR)
and is monitored by the TXMHMR or its designated local authority in accordance
with standards set by the TXMHMR.
(2)
The assessment of an administrative penalty will be in
accordance with the schedule of appropriate and graduated penalties described
in subsection (d) of this section. The schedule of appropriate and graduated
penalties for each violation is based on the following criteria:
(A)
the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation, and the hazard of the
violation to the health or safety of clients;
(B)
the history of previous violations by a person or a controlling
person with respect to that person;
(C)
whether the affected home and community support services
agency had identified the violation as part of its internal quality assurance
process and had made appropriate progress on correction. For purposes of this
subparagraph, appropriate progress is defined as making a good faith, substantial
effort to correct the violation in a timely manner;
(D)
the amount necessary to deter future violations;
(E)
efforts made to correct the violation; and
(F)
any others matters that justice may require.
(3)
In determining which violation(s) warrants a penalty(ies),
DHS will consider:
(A)
the seriousness of the violation(s), including the nature,
circumstances, extent, and gravity of the violation(s), and the hazard of
the violation(s) to the health or safety of a client; and
(B)
whether the affected agency had identified the violation(s)
as part of its internal quality assurance process and had made appropriate
progress on correction.
(4)
An administrative penalty for a subsequent occurrence may
only be assessed when the subsequent occurrence occurs within three years
from the date the agency first receives oral or written notice of the first
violation.
(5)
The assessment of an administrative penalty does not preclude
DHS from suspending, revoking, or denying a license in accordance with §97.601
of this title (relating to License Denial, Suspension or Revocation).
(c)
Correction period.
(1)
Following the first day of a violation, DHS will give an
agency a reasonable period of time to correct the violation. The period of
time must be reflected in and implemented through an accepted plan of correction.
A reasonable period of time for purposes of this paragraph will be as follows.
(A)
For a violation that results in serious harm to or death
of a client, constitutes an actual serious threat to the health or safety
of a client, or substantially limits the agency's capacity to provide care,
the violation must be corrected immediately or no later than seven calendar
days from the first time the agency is informed (orally or in writing) by
DHS staff of the violation. This is a severity level II violation.
(B)
For a violation that has or had minor or no health or safety
significance, the violation must be corrected within 20 calendar days from
receipt of the written notice of the violation (statement of deficiencies).
This is a severity level I violation.
(C)
An agency may request an extension in writing. An agency
may receive an extension upon DHS's approval. An extension is only appropriate
if the agency has made a good faith effort to correct the violation within
the required time period but has not been able to correct due to circumstances
beyond their control and if there is no serious harm or threat to clients.
(2)
If an agency corrects the violation within the time periods
described in paragraph (1) of this subsection, DHS may assess an administrative
penalty only for one level II violation that occurred before the day on which
the agency received written notice of the violation (statement of deficiencies).
No administrative penalty would be assessed for a level I violation.
(3)
A penalty(ies) assessed under this section may be a severity
level I penalty(ies) or a severity level II penalty(ies) or a combination
of a severity level I penalty(ies) and severity level II penalty(ies). If
an agency does not correct the violation within the time periods described
in paragraph (1) of this subsection, DHS may assess an administrative penalty
for:
(A)
one violation that occurred before the day on which the
agency received written notice of the violation (statement of deficiencies);
and
(B)
for each day of the violation during the correction period
and after the time period for correction has ended.
(d)
Schedule of penalties.
(1)
Minimum and maximum amount. An administrative penalty may
not be less than $100 or more than $1,000 for each violation.
(2)
Subject matter considered. If two or more of the rules
listed in paragraphs (3) and (4) of this subsection relate to the same or
similar subject matter, only one administrative penalty may be assessed at
the higher severity level violation.
(3)
Severity level I. A severity level I violation is a violation
that has or has had minor or no client health or safety significance.
(A)
The penalty for a severity level I violation will be assessed
only if the violation is of a continuing nature or the violation was not corrected
in accordance with the accepted plan of correction. DHS is not required to
provide the agency an opportunity to correct subsequent violations under this
section.
(B)
The penalty for a severity level I violation is $100-$250.
(C)
A violation of each of the rules listed in the following
table may warrant a severity level I administrative penalty.
Figure: 40 TAC §97.602(d)(3)(C)
(4)
Severity level II.
(A)
The penalty for a severity level II violation will be assessed
according to following schedule:
(i)
for a violation that results in serious harm to or death
of a client, the penalty will be $1,000;
(ii)
for a violation that constitutes an actual serious threat
to the health or safety of a client, the penalty will be $500 to $1,000; or
(iii)
for a violation that substantially limits the agency's
capacity to provide care, the penalty will be $500 to $750.
(B)
DHS may assess a separate level II administrative penalty
for a violation of each of the rules listed in the following table.
Figure 40 TAC §97.602(d)(4)(B)
(e)
Notice of violation. After investigation of a possible
violation and the facts surrounding that possible violation and after the
agency's receipt of the statement of deficiencies, if DHS determines that
a violation has occurred, DHS will give further written notice, via a notice
of violation letter, to the person alleged to have committed the violation.
(1)
The notice will include:
(A)
a brief summary of the alleged violation(s);
(B)
a statement of the amount of the proposed penalty based
on the factors listed in subsection (b) of this section; and
(C)
a statement of the person's right to a hearing on the occurrence
of the violation(s), the amount of the penalty, or both the occurrence of
the violation(s) and the amount of the penalty.
(2)
Not later than the 20th calendar day after the date on
which the notice is received, the person notified may accept the determination
of DHS made under this section, including the proposed penalty, or may make
a written request for a hearing on that determination. A person's acceptance
of DHS's determination means that the person has sent and DHS has received
a written acceptance notice accompanied by remittance of the proposed penalty.
(3)
If the person notified of the violation accepts the determination
of DHS or if the person fails to respond in a timely manner to the notice,
the commissioner or the commissioner's designee will issue an order approving
the determination and ordering that the person pay the proposed penalty.
(4)
If the person requests a hearing, procedures will be in
accordance with the statute, §§142.0172-142.0173 and DHS's formal
hearing procedures in Chapter 79, Subchapter Q of this title (relating to
Formal Hearings).
§97.603.Court Action.
(a)
If a person operates an agency without a license issued
under the Act, the person is liable for a civil penalty of not less than $1,000
or more than $2,500 for each day of violation.
(b)
If a person violates the licensing requirements of the
statute, the Texas Department of Human Services may petition the district
court to restrain the person from continuing the violation.
§97.604.Surrender or Expiration of License.
(a)
After a survey in which deficiencies were cited by the
surveyor, an agency may surrender its license before expiration or allow its
license to expire in lieu of the Texas Department of Human Services (DHS)
proceeding with enforcement action.
(b)
An agency may surrender before the expiration date by returning
its original license to DHS.
(c)
If an agency surrenders or allows expiration of the license,
the agency, its owner(s), and its affiliate(s) may not reapply for a license
for six months from the date of the surrender or expiration.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102161
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
40 TAC §97.701
The new section is proposed under the Health and Safety Code,
Chapter 142, which provides the department with the authority to adopt rules
for the licensing and regulation of home and community support services agencies.
The new section implements the Health and Safety Code, Chapter 142.001-142.030.
§97.701.Home Health Aides.
(a)
A home health aide may be used by an agency providing licensed
home health services if the aide meets one of the following requirements:
(1)
a minimum of one year full-time experience in direct client
care in an institutional setting (hospital or nursing facility);
(2)
one year full-time experience within the last five years
in direct client care in an agency setting;
(3)
satisfactorily completed a training and competency evaluation
program which complies with the requirements of this section;
(4)
satisfactorily completed a competency evaluation program
which complies with the requirements of this section;
(5)
submitted to the agency documentation from the director
of programs or the dean of a school of nursing that states that the individual
is a nursing student who has demonstrated competency in providing basic nursing
skills in accordance with the school's curriculum; or
(6)
be on the Texas Department of Human Services' (DHS's) nurse
aide registry with no finding against the aide relating to client abuse or
neglect or misappropriation of client property.
(b)
Tasks to be performed by a home health aide must be assigned
by and performed under the supervision of a registered nurse who must be responsible
for the client care provided by a home health aide.
(c)
A home health aide may perform those tasks that are delegated
and supervised by a registered nurse in accordance with §97.298 of this
title (relating to Delegation of Selected Nursing Tasks by Registered Professional
Nurses to Unlicensed Personnel).
(d)
The training portion of a training and competency evaluation
program for home health aides must be conducted by or under the general supervision
of a registered nurse who possesses a minimum of two years of nursing experience,
at least one year of which must be in the provision of home health care. The
training program may contain other aspects of learning, but must contain the
following:
(1)
a minimum of 75 hours as follows:
(A)
an appropriate number of hours of classroom instruction;
and
(B)
a minimum of 16 hours of clinical experience which will
include in-home training and must be conducted in a home, a hospital, a nursing
home, or a laboratory;
(2)
completion of at least 16 hours of classroom training before
a home health aide begins clinical experience working directly with clients
under the supervision of qualified instructors;
(3)
if licensed vocational nurse instructors are used for the
training portion of the program, the following qualifications and supervisory
requirements apply:
(A)
a licensed vocational nurse may provide the home health
aide classroom training under the supervision of a registered nurse who has
two years of nursing experience, at least one year of which must be in the
provision of home health care;
(B)
licensed vocational nurses, as well as registered nurses,
may supervise home health aide candidates in the course of the clinical experience;
and
(C)
a registered nurse must maintain overall responsibility
for the training and supervision of all home health aide training students;
and
(4)
an assessment that the student knows how to read and write
English and carry out directions.
(e)
The classroom instruction and clinical experience content
of the training portion of a training and competency evaluation program must
include, but is not limited to:
(1)
communications skills;
(2)
observation, reporting, and documentation of a client's
status and the care or service furnished;
(3)
reading and recording temperature, pulse, and respiration;
(4)
basic infection control procedures and instruction on universal
precautions;
(5)
basic elements of body functioning and changes in body
function that must be reported to an aide's supervisor;
(6)
maintenance of a clean, safe, and healthy environment;
(7)
recognizing emergencies and knowledge of emergency procedures;
(8)
the physical, emotional, and developmental needs of and
ways to work with the populations served by the agency including the need
for respect for the client and his or her privacy and property;
(9)
appropriate and safe techniques in personal hygiene and
grooming that include:
(A)
bed bath;
(B)
sponge, tub, or shower bath;
(C)
shampoo, sink, tub, or bed;
(D)
nail and skin care;
(E)
oral hygiene; and
(F)
toileting and elimination;
(10)
safe transfer techniques and ambulation;
(11)
normal range of motion and positioning;
(12)
adequate nutrition and fluid intake;
(13)
any other task that the agency may choose to have the
home health aide perform in accordance with §97.298 of this title (relating
to Delegation of Selected Nursing Tasks by Registered Professional Nurses
to Unlicensed Personnel); and
(14)
the rights of the elderly.
(f)
This section addresses the requirements for the competency
evaluation program or the competency evaluation portion of a training and
competency evaluation program.
(1)
The competency evaluation must be performed by a registered
nurse.
(2)
The competency evaluation must address each of the subjects
listed in subsection (e)(2)-(13) of this section.
(3)
Each of the areas described in subsection (e)(3) and (9)-(11)
of this section must be evaluated by observation of the home health aide's
performance of the task with a client or person.
(4)
Each of the areas described in subsection (e)(2), (4)-(8),
(12), and (13) of this section may be evaluated through written examination,
oral examination, or by observation of a home health aide with a client.
(5)
A home health aide is not considered to have successfully
completed a competency evaluation if the aide has an unsatisfactory rating
in more than one of the areas described in subsection (e) (2)-(13) of this
section.
(6)
If an aide receives an unsatisfactory rating, the aide
must not perform that task without direct supervision by a registered nurse
or licensed vocational nurse until the aide receives training in the task
for which he or she was evaluated as unsatisfactory and successfully completes
a subsequent competency evaluation with a satisfactory rating on the task.
(7)
If an individual fails to complete the competency evaluation
satisfactorily, the individual must be advised of the areas in which he or
she is inadequate.
(g)
If a person, who is not an agency licensed under this section,
desires to implement a home health aide training and competency evaluation
program or a competency evaluation program, the person must meet the requirements
of this section in the same manner as set forth for an agency.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102162
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 438-3108
Chapter 175.
GENERAL RULES OF THE VETERANS LAND BOARD
40 TAC §§175.9, 175.12, 175.14 - 175.16, 175.19
The Veterans Land Board of the State of Texas (the "Board")
proposes amendments to Title 40, Part 5, Chapter 175 of the Texas Administrative
Code, §§175.9 (relating to "Death of a Purchaser"), 175.12 (relating
to "Severances"), 175.14 (relating to "Mineral Leases"), 175.15 (relating
to "Approval of Easements"), 175.16 (relating to "Payment in Full"), and 175.19
(relating to "Subdivision Loan Processing") of the General Rules of the Veterans
Land Board. These amendments delete references to fee amounts in these sections,
correct a prescribed form that references years beginning with "19__," correct
some punctuation errors, and eliminate some procedures relating to appraisals
of subdivisions. These amendments are being proposed concurrently with the
proposed repeals of, and substitutions of new rules for, §175.17 (relating
to "Fees and Deposits") of the General Rules of the Veterans Land Board and §177.9
(relating to "Fees, Expenses, and Interest") of the Veterans Housing Assistance
Program.
The existing rules create fees that are charged by the Board. The amounts
of these fees are found in several different rules. The proposed amendments
delete the specific fee amounts from all rules. Concurrently published proposed
repeals and substitutions for §175.17 of the General Rules of the Veterans
Land Board and §177.9 of the rules for The Veterans Housing Assistance
Program will specify fee amounts respectively for the Veterans Land Program
(the "Program") and the Veterans Housing Assistance Program.
In addition, the rules proposed for amendment contains minor punctuation
errors. The rules also quote required language that references years beginning
with "19__." The proposed amendments correct the punctuation errors and change
the reference to years beginning with "19__" to "20__."
Finally, §175.19 refers to a $25 fee for application documents that
is no longer charged by the Board. The proposed amendment to§175.19 eliminates
the fee and procedures associated with it.
The proposed amendments, if adopted, are a necessary first step to protecting
the best interests of the Program by allowing the Board to list all fees in
one rule for the Program and in one rule for the Veterans Housing Assistance
Program.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the sections as amended are in effect,
there will be no negative fiscal implications to state or local government
as a result of enforcing or administering the sections. These sections, as
amended, are a necessary preliminary step to permitting the Board to consolidate
in one rule, for each of its loan programs, the specific amounts of all fees
it charges.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the sections as proposed will be in
effect, the public will benefit by being able to find all fees charged by
the Board listed in one rule for each of its loan programs.
Mr. Soward has determined that the proposed amendments will have no effect
on small businesses during each year of the first five years the sections
are in effect.
Mr. Soward has also determined that during each year of the first five
years the proposed amendments are in effect, there is no anticipated economic
cost to any persons who are required to comply with the sections.
Comments may be submitted to Melinda Tracy, Legal Services, General Land
Office of the State of Texas, 1700 N. Congress Avenue, Austin, Texas 78701.
The amendments to the sections are proposed under the Natural
Resources Code, Title 7, Chapter 161, §§161.063, 161.069, and 161.070,
which provides authorization for the Board to adopt rules for the Program
which it considers necessary and advisable, and set fees
Natural Resources Code §161.069 is affected by this proposed action.
Natural Resources Code §161.070 is affected by this proposed action.
§175.9.Death of a Purchaser.
(a)
Upon the death of the purchaser, if the account is insured
under the group life insurance plan, the board should be notified at once
and furnished with a certified copy of the death certificate and
a
[
(b)
If the account is not insured at the time of the purchaser's
death, the board should be furnished:
(1)
certified copies of all probate proceedings, if any; or
(2)
an affidavit of heirship, if the purchaser dies intestate
and no administration is necessary for the estate.
(c)
The person or persons acquiring the rights of the deceased
purchaser should indicate to the board that they are willing to accept the
obligations of the contract of sale and purchase.
(d)
Upon receipt of the items listed in subsections (a), (b),
and (c) of this section, the records of the board will be changed to reflect
the new ownership.
§175.12.Severances.
(a)
If a veteran wishes to have clear title to a portion of
the land he is purchasing, he may obtain a severance deed from the board for
that portion. To accomplish this the following steps should be taken:
(1)
A current ground survey of the portion to be severed must
be made by a qualified surveyor. The survey requirements of §175.4 of
this title (relating to Land Descriptions) must be met. The field notes and
plat prepared from the ground survey must be submitted to the board.
(2)
Both the tract to be severed and the remaining tract must
have access to a public road. If the severed tract includes all of the road
frontage, a 60 foot access easement to the portion remaining under contract
must be conveyed to the board.
(3)
Upon receipt of the field notes and plat, the board will
have an appraisal made to determine the amount to be paid for the severed
acreage. The veteran will be notified of the result of this appraisal. This
amount, which will be applied against the principal of the veteran's account,
should be submitted to the board, along with
a
[
(b)
The board will not issue severance deeds listing anyone
besides the original veteran purchaser or the last approved assignee as the
grantee.
(c)
All requests for severances will be subject to the approval
of the chairman of the board.
(d)
The chairman of the board is authorized to enter into,
and execute on behalf of the board, an agreement recognizing that an improvement,
when constructed, shall not attach to and become a part of the realty for
the duration of any obligation incurred by a purchaser in connection with
the erection of such improvement.
§175.14.Mineral Leases.
(a)
When applicable, a veteran may execute mineral leases covering
the land being purchased through the board. The following conditions must
be met:
(1)
No oil and gas lease will be accepted unless the board's
standard form is used. Copies of this form will be furnished upon request.
(2)
The lease must be approved by the chairman of the board.
(3)
Each lease must state the actual and true consideration
to be paid.
(4)
At least 1/2 of all proceeds, including bonus, rentals
and royalties received under the terms of such leases, shall be paid to the
board and applied toward the principal balance of the account. If an account
is delinquent, the board will require that additional payments of bonus, rental
and royalty be paid until the delinquency is satisfied. Payments made in this
manner will not relieve the veteran of his obligation to make the regular
installment payments.
(5)
The lease term may not exceed 10 years, except when a lease
is held in force by production. However, coal and lignite leases may be executed,
with board approval, for terms up to 40 years.
(6)
No lease may contain a provision for an option, renewal
or release for any term, nor may such provision be provided for by separate
instrument.
(b)
Each executed mineral lease must be submitted to the board
in duplicate. The approved original will be returned for recording with the
county clerk. One half of the bonus payment should accompany the lease, along
with a
lease review fee
[
(c)
At least five acres around and including improvements on
a tract must be excluded from all leases executed for iron ore, gravel, coal,
or other substances, the mining or development of which tends to destroy the
surface value of the land.
(d)
The veteran may lease the property for agricultural, hunting
or grazing purposes or for other surface uses without obtaining the approval
of the board. However, if the tract is forfeited the rights of the lessee
are then terminated.
§175.15.Approval of Easements.
(a)
A contract holder may, with the approval of the board,
grant easements or rights of way. These are of four general types:
(1)
A right of way granted to the state or county for roads,
channels, etc. The forms to be used in granting such an easement may be obtained
from the board or the State Highway Department of Highways and Public Transportation.
(2)
Utility easements for pipelines, electric lines, etc. The
board requires use of its form when granting such an easement, except when
an easement for a waterline is to be granted. In that case the FHA form may
be used. If an FHA form is used, a course and distance description of the
waterline must be attached.
(3)
Flowage easements granted in connection with dams and reservoir
projects. The agency administering the project furnishes the forms for such
easements. An elevation contour map of the acreage involved, together with
an engineer flood data sheet, may be used in place of a course and distance
description.
(4)
Easement for right of way purposes. The board does not
require the use of a specified form for easements of this type. However, a
form that may be used as a guide is available from the board.
(b)
If a VLB form is not used, the following paragraph must
be inserted into the grant of easement. This paragraph more fully explains
the conditions of ownership of the tract of land: "The land herein described
is under Contract of Sale and Purchase to grantor herein who will receive
a deed to said lands from the Veterans Land Board when all the terms of said
contract have been complied with. Grantor executes this instrument with the
approval of the Veterans Land Board in accordance with the regulations of
said board, which approval is signified by the signature hereon of its chairman."
A signature block must be provided at the conclusion of the instrument, as
follows: Approved this __________ day of __________,
20__
[
(c)
The contract holder must submit two original grants of
easement to the board. These must be signed by the contract holder and acknowledged
by a notary public.
(d)
A fee
must
[
(e)
The consideration paid for the easement must be stated
clearly and accurately. Statements such as "ten dollars and other good and
valuable consideration" are not acceptable.
(f)
All cash consideration paid for an easement must be submitted
to the board. The board will distribute the consideration in light of the
account's payment record, the amount of consideration and the effect on the
value of the land. At least one-half of the consideration will be retained
by the board and applied to the principal balance of the account.
(g)
Any payment made to compensate for temporary damage to
the land, such as to growing crops or to plowed fields, should be paid directly
to the contract holder. The amount of such payment and its purpose must be
specifically stated in the grant of easement.
(h)
If payment is made for permanent damage to or depletion
of the land (such as the cutting of timber), one half of that amount must
be paid to the board. This amount is to be applied to the principal of the
veteran's account.
(i)
If the easement is to be donated, the grant of easement
should so state
§175.16.Payment in Full.
(a)
When an account is paid in full the board will draft a
deed conveying the land to the original veteran-purchaser or the last approved
assignee. If a deed is executed to someone other than the legal owner, the
deed and the rights thereto shall inure to the benefit of the legal owner.
A
[
(b)
The board will accept a cashier's check, certified check,
personal check, money order or cash as final payment.
(c)
The board will furnish a final statement to the contract
holder at any time upon request.
§175.19.Subdivision Loan Processing.
(a)
To qualify for subdivision loan processing a seller must:
(1)
have, or plan to have at least five tracts of land available
for sale to veterans in the same subdivision or development;
(2)
agree to comply with all local ordinances and regulations
regarding the subdivision or resubdivision of land; and
(3)
agree to provide the services and materials described in
this rule to interested veterans in order to facilitate the board's processing
of loans.
(b)
A written request for subdivision loan processing of an
existing or proposed subdivision must be submitted to the board.
(c)
Those sellers who qualify for subdivision loan processing
may request the board to perform a preliminary appraisal of the subdivision.
This preliminary appraisal process will include:
(1)
Establishing high and low per acre values for the subdivision.
The board will use these valuations in determining how much it will loan for
the purchase of tracts in the subdivision.
(2)
Advising the seller, when appropriate, of the best subdivision
plan, so as to maximize land values of the gross acreage for sale.
(3)
Discussing requirements for roads, easements, water sources
and other factors affecting land values. Recommendations will be made if appropriate.
(d)
A
[
(e)
After the preliminary appraisal has been completed and
the seller indicates that tracts within a subdivision are ready for sale to
veterans, the seller may make arrangements with the board for appraisals of
specific tracts. The board will commit itself to a loan value based upon these
appraisals even though a specific veteran purchaser has not yet been identified.
To obtain these appraisals, the seller must:
(1)
Supply a ground survey of each tract of land by a registered
surveyor.
(2)
Submit to the board a certified copy of a recorded subdivision
plat, if the tracts are to be sold by lot and block numbers. This plat must
contain evidence that it has been approved and accepted by the county commissioners.
(3)
Obtain a title insurance commitment for each tract;
(4)
Request a field appraisal of each tract by the board. A
fee [
(5)
Furnish a recorded subdivision plat, if requested by the
board.
(f)
Sellers may arrange to obtain application packets from
the board. [
[(1)
the application packet will be inactive
until a veteran purchases it from the seller for $25 and that amount is received
by the board, along with the veteran's name, address and phone number; ]
[(2)
the board will then assign a serial number
and a 90 day void date to the application; ]
[(3)
the veteran and the seller may complete
an application the same day it is sold to the veteran and mail the completed
packet to the board at that time; ]
[(4)
the application becomes the property
of the veteran when it is activated and it may be used for the purchase of
any land that the veteran wishes to buy which qualifies for the veteran land
program.]
(g)
Sellers using the subdivision loan processing system should
help veterans complete all forms and documents required for processing and
closing loans. Sellers will also be responsible for having veterans:
(1)
submit the correct amounts for down payments and fees required
by the board; and
(2)
provide any missing documentation needed in order to qualify,
process, or close a loan.
(h)
Completed application packets must be received by the board
within 30 days of the date the application contract is signed.
(i)
Application packets are to be submitted by the seller and
must include:
(1)
a copy of the recorded subdivision plat or other evidence
of compliance with local regulations and ordinances; and
(2)
a title insurance commitment for the tract to be purchased.
(j)
Due to the nature and purpose of the subdivision loan processing
program, it is the seller's responsibility to work with the veteran and the
board to expedite the processing of the loan. For this reason it is suggested
that the seller designate one individual to serve as a contact person with
the board. This person should be familiar with the board's forms, rules, procedures,
and any other requirements necessary for successful processing of the loan.
In this regard it is also suggested that the contact person familiarize himself
and maintain regular contacts with the board's field staff, county committees,
local veterans' service officers, and the title company providing insurance.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 16, 2001.
TRD-200102140
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 305-9129
40 TAC §175.17
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Veterans Land Board or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Veterans Land Board of the State of Texas (the
"Board") proposes to repeal and propose a new §175.17 (relating to Fees
and Deposits) of the General Rules of the Veterans Land Board, Title 40, Part
5, Chapter 175 of the Texas Administrative Code.
This repeal and substitution is proposed concurrently with amendments to
Title 40, Part 5, Chapter 175 of the Texas Administrative Code, §§175.9
(relating to Death of a Purchaser), 175.12 (relating to Severances), 175.14
(relating to Mineral Leases), 175.15 (relating to Approval of Easements),
175.16 (relating to Payment in Full), 175.19 (relating to Subdivision Loan
Processing) and 177.9 (relating to Fees, Expenses, and Interest) of the General
Rules of the Veterans Land Board. The foregoing amendments remove references
to the amounts of all fees charged by the Board from all existing rules.
By repealing §175.17 and proposing a new rule in its place, the Board
describes in a single rule all fees it charges in the Veterans Land Program.
The proposed rule changes the existing fees as follows: (1) It authorizes
the Board to adopt by resolution, from time-to-time, a schedule describing
all services for which it charges a fee; (2) It authorizes the chairman or
executive secretary of the Board to waive the collection of any fee, on a
case by case basis, if it serves the best interests of the program; (3) It
establishes maximum amounts for fees the Board can set by resolution. These
maximum amounts are described in the rule. In order to set any fee in a greater
amount, the Board must propose an amendment to the rule; and (4) It changes
the appraisal fee from $120 to an amount not to exceed $250 and the reappraisal
fee from $120 to an amount not to exceed $100. The service fee for contracts
is changed from $70 to an amount not to exceed $75. The returned check fee
is changed from $15 to $25. The $25 application fee; the $25 forfeited land
bid fee; the $375 administrative cost and application processing fee; and
the reinstatement fee are all eliminated. All other existing fees are limited
to an amount not to exceed $75 each.
All of the proposed new rules, if adopted, protect the best interests of
the Programs by allowing the Board to list all fees in one rule for each loan
program and set the amount of individual fees, expenses, and interest rates
by resolution. This allows the Board to operate the Program in a manner that
is responsive to the needs of veterans as market conditions change over time.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the section as amended is in effect,
there will be no overall negative fiscal implications to state or local government
as a result of enforcing or administering the section. This section, as proposed,
consolidate in one rule, for each of its loan programs, the specific amount
of each fee the Board charges, or permits other parties to charge participants.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the section as proposed will be in effect,
the public will benefit by being able to find all fees charged by the Board
listed in one rule for each of its loan programs. Several fees have been eliminated
and others reduced. The total fees charged by the Board during the course
of originating a typical loan through the Veterans Land Program will decrease
approximately $420.
Mr. Soward has determined that the proposed amendment will have no effect
on small businesses during each year of the first five years the sections
are in effect.
Mr. Soward has also determined that during each year of the first five
years the proposed amendments are in effect, there is no anticipated economic
cost to any persons who are required to comply with the sections.
Comments may be submitted to Melinda Tracy, Legal Services, General Land
Office of the State of Texas, 1700 N. Congress Avenue, Austin, Texas 78701.
The repeal of this section is proposed under the Natural Resources
Code, Title 7, Chapter 161, §§161.063, 161.069, and 161.070 which
authorize the Board to set fees and adopt rules for the Programs which it
considers necessary and advisable.
Natural Resources Code §§161.069 and 161.070 are affected by
this proposed action.
§175.17.Fees and Deposits.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on April 16, 2001.
TRD-200102144
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 305-9129
40 TAC §175.17
The new section is proposed under the Natural Resources Code,
Title 7, Chapter 161, §§161.063, 161.069, and 161.070 which authorize
the Board to set fees and adopt rules for the Programs which it considers
necessary and advisable.
Natural Resources Code §§161.069 and 161.070 are affected by
this proposed action.
§175.17.Fees and Deposits.
(a)
Notwithstanding any other references to fees in this chapter
to the contrary, the only fees collected by the board shall be those described
in this section.
(1)
The board shall from time-to-time adopt by resolution a
schedule describing the services for which it charges fees. The board's resolution
adopting a schedule shall set the specific fee for each service described
in the schedule, provided that no fee shall exceed the maximum amounts described
in this section. The schedule will be made available to any person upon request
and will be published on the board's Internet site.
(2)
If another law of the state requires the board to perform
a service, the board shall collect the fee authorized by said law.
(3)
On a case-by-case basis, the chairman or the executive
secretary may waive the collection of any fee described in this section if
it serves the best interests of the program.
(b)
The board shall collect the following fees when they are
applicable:
(1)
a fee not to exceed $250 for a regular (or first) appraisal
of a tract of land;
(2)
a fee not to exceed $100 for the reappraisal of land previously
appraised by the board for the same transaction;
(3)
a fee for a subdivision pre-appraisal and consultation
fee -- $2 per acre, calculated on the gross acreage in the subdivision, with
a minimum of $250;
(4)
a fee not to exceed $25 for a returned check (NSF);
(5)
The board shall collect a fee not to exceed $75 for the
preparation, review, or approval of any document, including but not limited
to the following:
(A)
contract of sale and purchase;
(B)
mineral lease or assignment of mineral lease;
(C)
easement, including but not limited to utility easements,
access right of ways, and recreational;
(D)
transfer of contract and sale and purchase;
(E)
deed issued when a portion of a tract is severed prior
to the full payment of its loan;
(6)
a fee for a deed issued when a loan is paid in full, not
to exceed:
(A)
$75 if the contract incorporates this chapter by reference,
or includes a general reference to the rules and/or regulations of the board;
or
(B)
the amount of the fee that was in effect on the date the
contract was executed if the contract contains no reference to the rules and/or
regulations of the board.
(c)
No fee may be charged in connection with the program to
a loan applicant by a third party that has not been approved by the board.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102143
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 305-9129
40 TAC §177.9
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Veterans Land Board or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Veterans Land Board of the State of Texas (the
"Board") proposes to repeal and propose a new §177.9 (relating to Fees,
Expenses, and Interest) of the Veterans Housing Assistance Program, Title
40, Part 5, Chapter 177 of the Texas Administrative Code.
This repeal and substitution is proposed concurrently with amendments to
Title 40, Part 5, Chapter 175 of the Texas Administrative Code, §§175.9
(relating to Death of a Purchaser), 175.12 (relating to Severances), 175.14
(relating to Mineral Leases), 175.15 (relating to Approval of Easements),
175.16 (relating to Payment in Full), 175.17 (relating to Fees and Deposits)
and 175.19 (relating to Subdivision Loan Processing) and 177.9 (relating to
Fees, Expenses, and Interest) of the General Rules of the Veterans Land Board.
The foregoing amendments remove references to the amounts of all fees charged
by the Board from all existing rules.
By repealing §177.9 and proposing a new rule in its place, the Board
describes in a single rule all fees that may be charged by all parties participating
in the Veterans Housing Assistance Program. The proposed rule makes the following
changes: (1) It requires all fees and interest rates changed in connection
with the Veterans Housing Assistance Program by any party to be submitted
to the Board for approval. This includes fees charged to borrowers by the
Board or by participating lending institutions and fees charged to participating
lending institutions by the administrator; (2) It permits the Board to approve
and set all fees by the adoption of resolutions from time-to-time; (3) It
limits the amounts of fees, expenses, and interest rates charged by lending
institution to those amounts collected by the institutions in the normal course
of their residential mortgage lending businesses; and (4) The administrator
shall incorporate in the Servicing Guide for the Veterans Housing Assistance
Program provisions for the maximum amounts of fees, expenses and interest
rates that participating lending institutions may charge.
All of the proposed new rules, if adopted, protect the best interests of
the Programs by allowing the Board to list all fees in one rule for each loan
program and set the amount of individual fees, expenses, and interest rates
by resolution. This allows the Board to operate the Programs in a manner that
is responsive to the needs of veterans as market conditions change over time.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the section as amended is in effect,
there will be no overall negative fiscal implications to state or local government
as a result of enforcing or administering the sections. This section, as proposed,
consolidate in one rule, for each of its loan programs, the specific amount
of each fee the Board charges, or permits other parties to charge participants.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the section as proposed will be in effect,
the public will benefit by being able to find all fees charged by the Board
listed in one rule for each of its loan programs.
Mr. Soward has determined that the proposed amendment will have no effect
on small businesses during each year of the first five years the sections
are in effect.
Mr. Soward has also determined that during each year of the first five
years the proposed amendment is in effect, there is no anticipated economic
cost to any persons who are required to comply with the sections.
Comments may be submitted to Melinda Tracy, Legal Services, General Land
Office of the State of Texas, 1700 N. Congress Avenue, Austin, Texas 78701.
The repeal of this section is proposed under the Natural Resources
Code, Title 7, §§162.003(a)(3) and (b), 162.011(e), and 162.013,
which authorize the Board to set fees and adopt rules for the Programs which
it considers necessary and advisable.
Natural Resources Code §§162.003(a)(3) and (b); 162.011(e); and
162.013 are affected by this proposed action.
§177.9.Fees, Expenses, and Interest
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on April 16, 2001.
TRD-200102142
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 305-9129
40 TAC §177.9
The proposed new section is proposed under the Natural Resources
Code, Title 7, §§162.003(a)(3) and (b), 162.011(e), and 162.013,
which authorize the Board to set fees and adopt rules for the Programs which
it considers necessary and advisable.
Natural Resources Code §§162.003(a)(3) and (b); 162.011(e); and
162.013 are affected by this proposed action.
§177.9.Fees, Expenses, and Interest.
(a)
The board must approve all fees and interest rates charged
in connection with the program, by any party. These include, but are not limited
to:
(1)
All fees charged by any party to a veteran receiving a
loan under this program must be approved by the board, including fees, expenses,
and interest rates charged by the participating lending institution on its
portion of the loan to the veteran. Fees and expenses approved by the board
may be made a part of the veteran's loan installment payments.
(2)
All fees and expenses charged to a participating lending
institution under this program by the administrator.
(b)
The board finds that it protects the best interests of
the program if all fees, expenses, and interest rates are set by resolutions
adopted by the board from time-to-time as it deems advisable.
(1)
Within a reasonable period of time, the board shall either
approve or disapprove any proposed changes to any fees, expenses, and interest
rates charged by a participating lending institution.
(2)
All fees, expenses, and interest rates shall be limited
to the maximum extent practical to those that would be collected by the participating
lending institution in the normal course of its residential mortgage lending
business.
(3)
The administrator shall incorporate in the program and
servicing guide (the "guide") for participating lending institutions provisions
for the maximum that may be charged. In the alternative, the administrator
shall incorporate in the guide the procedures for computing the maximum fees,
expenses, and interest rates which participating lending institutions may
charge veterans. The contracts between the board and the participating lending
institutions shall incorporate the guide.
(4)
Violation by a participating lending institution of the
board's requirements as to maximum fees, expenses, and interest rates may
result in revocation of the board's approval of the lending institution as
a participant in the program, or such other remedies as may be available to
the board.
(c)
The board may require that the veteran make a down payment
not to exceed 5.0% of the total purchase price of the home. This down payment
shall be paid to the participating lending institution at closing. In the
alternative, the board may require a down payment not to exceed 5.0% of the
board's portion of the loan to be paid to the board. In this event, the veteran
shall satisfy the participating lending institution's requirements as to down
payment for the particular type of loan being made by the participating lending
institution.
(d)
Principal and interest that becomes delinquent shall be
subject to a penalty fixed by the board on its portion of the loan. The participating
lending institution may set late payment penalties as permitted by law on
its portion of the loan.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on April 16, 2001.
TRD-200102141
Larry R. Soward
Chief Clerk, General Land Office
Texas Veterans Land Board
Earliest possible date of adoption: May 27, 2001
For further information, please call: (512) 305-9129
Chapter 604.
HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM
(ii)
(iii)
] demonstrate that Medicaid
residents in their community do not have reasonable access to quality nursing
facility care;
(iv)
] document strong community
support for a new Medicaid nursing facility; and
(v)
] demonstrate a history of
quality care, as specified in subsection (d) of this section. An applicant
that has not owned or operated a nursing facility may apply; however, DHS
will evaluate the applicant and any controlling person to determine if the
applicant has the capacity to provide quality care.
shall mean
]
means
all persons
who are
African-American
[
black
],
Hispanic
[
hispanic
], Asian or Pacific islander, American Indian, or Alaskan
native. The facility must:
(i)
(ii)
] serve a zip code whose minority
population is greater than 50%, according to the most recent U.S. census;
and
(iii)
] document that minority
residents in the zip code in which the facility is located are unable to attain
Medicaid long term care services in that specific location, due to lack of
such service availability
.
[
; and
]
(iv)
; and
]
(iv)
Chapter 97.
LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
these sections
] is to implement the Health and Safety Code, Chapter
142, which
provides the Texas Department of Human Services (DHS) with
the authority to adopt minimum standards that a person must meet in order
to be licensed as a home and community support services agency (HCSSA) and
also to qualify to provide certified home health services. The requirements
serve as a basis for survey activities for licensure
[
requires
a home and community support services agency to be licensed by the Texas Department
of Human Services
].
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(e.g.
],
such as
health maintenance
organizations or other private third-party insurance, Medicaid (Title XIX
of the Social Security Act), Medicare (Title XVIII of the Social Security
Act), or state-sponsored funding programs [
)
] are separate and
apart from the requirements in this chapter for agencies. No matter what funding
sources or requirements apply to an agency, the agency must still comply with
the applicable provisions in the statute and this chapter. The agency is responsible
for researching availability of any funding source to cover the service(s)
the agency provides.
for
the State of Texas
] to practice as an advanced practice nurse
and who maintains compliance with the applicable rules of the BNE. See BNE's
definition of advanced practice nurse in 22 TAC §221.1 (concerning definitions)
[
on the basis of completion of an advanced educational program.
The term includes a nurse practitioner, nurse midwife, nurse anesthetist,
and clinical nurse specialist
].
or treatment regimen
]--Any needed ancillary aid provided to a client in the client's self-administered
medication or treatment regimen, such as reminding a client to take a medication
at the prescribed time, opening and closing a medication container, pouring
a predetermined quantity of liquid to be ingested, returning a medication
to the proper storage area, and assisting in reordering medications from a
pharmacy. Such ancillary aid
does
[
must
] not include
administration of any medication, unless the client has the cognitive ability
to direct the administration of their medication and would self-administer
if not for a functional limitation.
(22)
] Controlling person--A person
with the ability, acting alone or in concert with others, to directly or indirectly,
influence, direct, or cause the direction of the management, expenditure of
money, or policies of an agency or other person.
(23)
] Counselor--An individual
qualified under Medicare standards to provide counseling services, including
bereavement, dietary, spiritual, and other counseling services to both the
client and the family.
(24)
]
DHS
[
Department
]--The Texas Department of Human Services [
(DHS)
].
(25)
] Dialysis treatment record--For
home dialysis designation, a dated and signed written notation by the person
providing dialysis treatment which contains a description of signs and symptoms,
machine parameters and pressure settings, type of dialyzer and dialysate,
actual pre- and post-treatment weight, medications administered as part of
the treatment, and the client's response to treatment.
(26)
] Dietitian--A person who
is currently licensed under the laws of
the State of Texas
[
this state
] to use the title of licensed dietitian or provisional licensed
dietitian, or who is a registered dietitian.
(27)
] Director--The director of
the Home and Community Support Services Agencies
Program
of the
Texas Department of Human Services or his or her designee.
(28)
] End stage renal disease
(ESRD)--For home dialysis designation, the stage of renal impairment that
appears irreversible and permanent and requires a regular course of dialysis
or kidney transplantation to maintain life.
(29)
] Freestanding hospice--An
agency that provides hospice services to clients of the agency who are residing
at the agency's physical location including inpatient and respite care.
(30)
] Functional need--Needs of
the individual which require services without regard to diagnosis or label.
(31)
] Health assessment--A determination
of a client's physical and mental status through inventory of systems.
(32)
] Home and community support
services agency--A person who provides home health, hospice, or personal assistance
services for pay or other consideration in a client's residence, an independent
living environment, or another appropriate location.
(33)
] Home health medication aide--A
person permitted under the Health and Safety Code, Chapter 142, Subchapter
B.
(34)
] Home health service--The
provision of one or more of the following health services required by an individual
in a residence or independent living environment:
(35)
] Hospice--A person licensed
under this chapter to provide hospice services, including a person who owns
or operates a residential unit or an inpatient unit.
(36)
] Hospice services--Services,
including services provided by unlicensed personnel under the delegation of
a registered nurse or physical therapist, provided to a client or a client's
family as part of a coordinated program consistent with the standards and
rules adopted under this chapter. These services include palliative care for
terminally ill clients and support services for clients and their families
that:
residence
],
nursing facility, residential unit, [
independent living environment,
] or inpatient unit according to need. These services do not include
inpatient care normally provided in a licensed hospital to a terminally ill
person who has not elected to be a hospice client.
(37)
] Independent living environment--A
client's individual residence, which may include a group home or foster home,
or other settings where a client participates in activities, including school,
work, or church.
(38)
] Individual/family choice
and control--Individuals and families who express preferences and make choices
about how their support service needs are met.
(39)
] Inpatient unit--A facility
that provides a continuum of medical or nursing care and other hospice services
to clients admitted into the unit and that is in compliance with the conditions
of participation for inpatient units adopted under Social Security Act, Title
XVIII (42 United States Code §1395 et seq.) and standards adopted under
this chapter.
(40)
] Interdisciplinary team--
(A)
(B)
]
a
]
A
group of individuals
who work together in a coordinated manner to provide hospice services and
must include a physician, registered nurse, social worker, and counselor.
(41)
] Licensed vocational nurse--A
person who is currently licensed under
Occupations Code, Chapter 302
[
Texas Civil Statutes, Article 4528c
], as a licensed vocational
nurse.
(42)
] Long-term program--For home
dialysis designation, the written documentation of the selection of a suitable
treatment modality and dialysis setting which has been selected by the client
and the interdisciplinary team.
(43)
] Manager--A person having
a contractual relationship to provide management services to a home and community
support services agency for the overall operation of a home and community
support services agency including administration, staffing, or delivery of
services. Examples of contracts for services that will not be considered to
be contracts for management services include contracts solely for maintenance,
laundry, or food services.
(44)
] Medication administration
record--A record used to document the administration of a client's medications.
(45)
] Medication list--A list
of a client's medications that includes the recommended dosage and the frequency
and method of administration. The medication list is used to identify possible
ineffective drug therapy or adverse reactions, significant side effects, drug
allergies, and contraindications. [
The medication list does not include
a medication profile.
]
(46)
] Notarized copy--A sworn
affidavit stating that attached copies are true and correct copies of the
original documents.
(47)
] Nursing facility--An institution
licensed as a nursing home under the Health and Safety Code, Chapter 242.
(48)
] Nutritional counseling--Advising
and assisting individuals or families on appropriate nutritional intake by
integrating information from the nutrition assessment with information on
food and other sources of nutrients and meal preparation consistent with cultural
background and socioeconomic status, with the goal being health promotion,
disease prevention, and nutrition education. Nutritional counseling may include,
but is not limited to, the following:
(49)
] Occupational therapist--A
person who is currently licensed under the Occupational Therapy Practice Act,
Occupations Code, Chapter 454
[
Texas Civil Statutes, Article 8851
], as an occupational therapist.
(50)
] Owner--One of the following
persons which will hold or does hold a license issued under the statute in
the person's name or the person's assumed name:
(51)
] Palliative care--Intervention
services that focus primarily on the reduction or abatement of physical, psychosocial,
and spiritual symptoms of a terminal illness.
(52)
] Parent agency--The agency
that develops and maintains administrative controls and provides supervision
of branch offices and alternate delivery sites.
(53)
] Parent company--A person,
other than an individual, who has a direct 100% ownership interest in the
owner of an agency.
(54)
] Person--An individual, corporation,
or association.
(55)
] Personal assistance services--Routine
ongoing care or services required by an individual in a residence or independent
living environment that enable the individual to engage in the activities
of daily living or to perform the physical functions required for independent
living, including respite services. The term includes health-related services
performed under circumstances that are defined as not constituting the practice
of professional nursing by the Board of Nurse Examiners through a memorandum
of understanding with DHS in accordance with Health and Safety Code, [
§167
] §142.016, and health-related tasks provided by unlicensed
personnel under the delegation of a registered nurse [
or physician
].
(56)
] Physical therapist--A person
who is currently licensed under
Occupations Code, Chapter 453
[
Texas Civil Statutes, Article 4512e
], as a physical therapist.
(57)
] Physician--A person [
who is currently licensed under the laws of a state within the United States
and in which the person practices medicine and
] who holds a doctor of
medicine or doctor of osteopathy degree
and is currently licensed and
practicing medicine under the laws of the state of Texas, Oklahoma, New Mexico,
Arkansas, or Louisiana
.
(58)
] Physician assistant--A person
who is licensed under the Physician Assistant Licensing Act,
Occupations
Code, Chapter 204
[
Texas Civil Statutes, Article 4495-1
],
as a physician assistant.
(59)
]
Physician-delegated
[
Physician delegated
] tasks--Tasks performed in accordance
with the Medical Practice Act,
Occupations Code, Chapter 157
[
Texas Civil Statutes, Article 4495d, §3.06
], including orders signed
by a physician which specify the delegated task(s), the individual to whom
the task(s) is delegated, and the client's name.
(60)
] Place of business--An office
of a home and community support services agency that maintains client records
or directs home health, hospice, or personal assistance services. The term
does not include an administrative support site.
(61)
] Plan of care--The written
orders of a practitioner for a client who requires skilled services.
(62)
] Practitioner--A person who
is currently licensed in a state in which the person practices as a physician,
dentist, podiatrist, or a physician assistant, or a person who is a registered
nurse registered with the Board of Nurse Examiners for the State of Texas
as an advanced practice nurse.
(63)
] Presurvey conference--A
conference held with
DHS
[
department
] staff and the
applicant or his or her representatives to review licensure standards and
survey documents and provide consultation prior to the on-site licensure survey.
(64)
] Progress note--A dated and
signed written notation by agency personnel summarizing facts about care and
the client's response during a given period of time.
(65)
] Psychoactive treatment--The
provision of a skilled nursing visit to a client with a psychiatric diagnosis
under the direction of a physician that includes one or more of the following:
(66)
] Registered nurse (RN)--A
person who is currently licensed under the Nursing Practice Act,
Occupations
Code, Chapter 301,
[
Texas Civil Statutes, Article 4513 et seq.
] as a registered nurse.
(67)
] Registered nurse delegation--Delegation
by a registered nurse in accordance with 22 TAC
Chapter 218
[
§§218.1-218.11
] (
concerning
Delegation of Selected
Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel).
(68)
] Residence--A place where
a person resides and includes a home, a nursing facility, a convalescent home,
[
an independent living environment
], or a residential unit. [
A residence includes a group or a foster home.
]
(69)
] Residential unit--A facility
that provides living quarters and hospice services to clients admitted into
the unit and that is in compliance with standards adopted under the
Health and Safety Code, Chapter 142
[
Texas Special Care Facility
Licensing Act, Health and Safety Code, Chapter 248
].
(70)
] Respiratory therapist--A
person who is currently licensed under
Occupations Code, Chapter 604
[
Texas Civil Statutes, Article 4512l
], as a respiratory
care practitioner.
(71)
] Respite services--Support
options that are provided temporarily for the purpose of relief for a primary
caregiver in providing care to individuals of all ages with disabilities or
at risk of abuse or neglect. [
Respite services may be provided under
home health, hospice, or personal assistance services depending on the needs
of the client.
]
(72)
]
Section
[
Sections
]--
A reference to a specific rule in
Chapter 97 of
this title (
concerning Licensing Standards for
Home and Community
Support Services
Agencies
[
Agency
]).
(73)
] Service area--The geographic
area(s) established by an agency in which all or some of the agency's services
are available.
(74)
] Skilled services--Services
in accordance with a plan of care that require the skills of a:
(75)
] Social worker--A person
who is currently licensed as a social worker under
Occupations Code,
Chapter 505
[
Human Resource Code, Chapter 50
].
(76)
] Speech-language pathologist--A
person who is currently licensed under [
the
]
Occupations Code,
Chapter 401
[
Texas Civil Statutes, Article 4512j
], as a speech-language
pathologist.
(77)
] Statute--The Health and
Safety Code, Chapter 142.
(78)
] Supervising nurse--The person
responsible for supervising skilled services provided by an agency and who
has the qualifications described in
§97.244(b) of this title (relating
to Staffing Qualifications and Conditions)
[
§97.21(b)(3)(C)
of this title (relating to Licensure Requirements and Standards for Agencies
Providing Licensed Home Health, Licensed and Certified Home Health, or Hospice
Services)
]. This person may also be known as the director of nursing
or similar title.
(79)
] Supervision--Authoritative
procedural guidance by a qualified person for the accomplishment of a function
or activity with initial direction and periodic inspection of the actual act
of accomplishing the function or activity.
(80)
] Support services--Social,
spiritual, and emotional care provided to a client and a client's family by
a hospice.
(81)
] Survey--An inspection or
investigation conducted by a
DHS
representative [
of the department
] to determine if a licensee is in compliance with the statute and this
chapter. [
A survey may be conducted onsite, by mail, by telephone or
by electronic communication methods.
]
(82)
] Terminal illness--An illness
for which there is a limited prognosis if the illness runs its usual course.
(83)
] Unlicensed person--An individual
who is not licensed as a health care professional. The term includes, but
is not limited to, home health aides, medication aides permitted by
DHS
[
the department
], and other individuals providing personal
care or assistance in health services.
(84)
] Volunteer--An individual
who provides assistance to a home and community support services agency without
compensation other than reimbursement for actual expenses. [
A volunteer
must meet the same requirements and standards in this chapter as apply to
an employee of the agency doing the same activities unless the volunteer is
exempt under this chapter from certain requirements or standards.
]
,
] based
on a change of ownership [
,
] makes late application for a license
to the Texas Department of Human Services (DHS) in accordance with §97.13(b)(2)(C)(iii)
of this title (relating to Change of Ownership [
and Services
]),
the applicant must submit the appropriate initial license fee as set out in
subsection (a) of this section plus an additional late fee of $250.
Subchapter B. APPLICATION AND ISSUANCE OF A LICENSE
(i)
(ii)
:
]
(I)
(II)
§97.21(b)(3)(C)
] of this title
(relating to Staffing
Qualifications and Conditions)
;
§97.52
] of this title (relating to
License Denial, Suspension, or Revocation
[
Enforcement Action
]);
and
§97.52
] of this title (relating to
License Denial, Suspension, or Revocation
[
Enforcement Action
]).
§97.51(a)
] of this title (relating to Survey Procedures).
§97.52 of this title (relating
to Enforcement Action)
].
(1)
(2)
(3)
(4)
(5)
(6)
the department
] may propose
to revoke the initial license and deny the first renewal license and must
notify the applicant of a license revocation and denial as provided in
§97.601 of this title (relating to License Denial, Suspension, or Revocation)
[
§97.52 of this title (relating to Enforcement Action)
].
(o)
or Services ].
§97.52
] of this title (relating to
License Denial,
Suspension, or Revocation
[
Enforcement Action
]).
§97.52(a)
] of this title
(relating to
License Denial, Suspension, or Revocation
[
Enforcement
Action
]).
(d)
(1)
(A)
(B)
(C)
(2)
(e)
(1)
(2)
(A)
(B)
(C)
(D)
(f)
(1)
(A)
(B)
(2)
(3)
§97.52
] of this title
(relating to Enforcement [
Action
]).
§97.27
] of this title (relating to Standards for Branch Offices).
§97.52
] of this title (relating to
License Denial, Suspension, or Revocation
[
Enforcement Action
])
after consideration of the designated survey office's recommendation.
§97.27
] of this title (relating to Standards for Branch Offices)
and the standards relating to the category(ies) authorized under the license.
§97.52 of
this title
] (relating to Enforcement [
Action
]).
§97.28
] of this title (related to Standards for Alternate
Delivery Sites).
§97.52
] of this title
relating to
License Denial, Suspension, or Revocation)
after consideration of the
designated survey office's recommendation.
§97.25
] of this title (relating to Standards
Specific to Agencies Licensed to Provide
[
for
] Hospice Services)
and
§97.322
[
§97.28
] of this title
(relating
to Standards for Alternate Delivery Sites)
. The designated survey office
will conduct an on-site survey after a license has been issued to verify compliance
with
§97.403
[
§97.25
] of this title (relating
to Standards
Specific to Agencies Licensed to Provide
[
for
] Hospice Services) and
§97.322
[
§97.28
]
of this title (relating to Standards for Alternate Delivery Sites).
or Services
]).
Subchapter C. SERVICE STANDARDS
Subchapter D. ENFORCEMENT
Subchapter E. HOME HEALTH AIDES AND MEDICATION AIDES
Subchapter F. ADVISORY COMMITTEES
Subchapter C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
2.
CONDITIONS OF LICENSE
3.
AGENCY ADMINISTRATION
4.
PROVISION AND COORDINATION OF TREATMENT AND SERVICES
5.
BRANCH OFFICES AND ALTERNATE DELIVERY SITES
Subchapter D. ADDITIONAL STANDARDS SPECIFIC TO LICENSE CATEGORY AND SPECIFIC TO SPECIAL SERVICES
Subchapter E. SURVEYS
Subchapter F. ENFORCEMENT
Subchapter G. HOME HEALTH AIDES
Part 5.
TEXAS VETERANS LAND BOARD
$80
] deed fee, which is not paid under the group insurance plan.
$80
]deed
fee. The board will then issue a deed, conveying clear title to the severed
portion.
service fee in the amount of $100
]. If the account is delinquent, all of the bonus payment, or as much
as may be required, should be sent to the board to satisfy the delinquency.
19__
] Veterans Land Board of the State of Texas by: ___________________________Chairman,
Veterans Land Board.
of $40 per easement is to
]be
paid to the board for review and approval of such easements. This fee is to
be submitted to the board, along with the duplicate easement documents and
any consideration paid, at the time the board's approval is requested.
An $80
] fee must be paid to the board for issuance of
the deed.
The
] fee
is charged
for the preliminary subdivision appraisal [
is $2.00 per acre, calculated
on gross acreage available in the subdivision. The minimum fee is $250
].
of $120
]is charged in advance for each appraisal. This fee
will be refunded to the seller if the tract is sold to a veteran through the
Veterans Land Program; and
These packets will not have an application serial number
or a 90 day void date on them and will be handled as follows:
]
Chapter 177.
VETERANS HOUSING ASSISTANCE PROGRAM
Part 17.
STATE PENSION REVIEW BOARD